Opinion
No. 63206-0-I.
January 11, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-1-02649-0, James H. Allendoerfer, J., entered March 6, 2009.
Affirmed by unpublished opinion per Cox, J., concurred in by Appelwick and Leach, JJ.
We review a trial court's decision to admit evidence under an abuse of discretion standard. Because the challenged statement of the victim of child molestation was not hearsay, the trial court did not abuse its discretion in admitting it. A trial witness was given an opportunity to explain her prior inconsistent statement. Thus, the court did not abuse its discretion in admitting that prior inconsistent statement that the State proffered. We affirm.
State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
R., born April 27, 1992, lived with her grandmother, Mary Addleman, from the time she was about two years old until December 2006. R.'s brother E., born August 29, 1990, also lived with Addleman for most of that time period. From the time that R. was about 3 or 4, R. and E. spent "[j]ust about every other weekend" with their grandfather, Charles Hargitt, and his wife. Sometimes the children would spend longer amounts of time at the Hargitts' home, particularly in the summer or during school breaks.
Report of Proceedings (Dec. 9, 2008) at 43-45. Addleman testified that she believed R. and E. came to live with her in 1996. Id. at 182. The difference in dates does not affect the analysis here.
R. testified that she had her own bedroom at the Hargitts' home and did not remember ever sharing a room with E. Something first happened when Hargitt tucked R. into bed one night when she was around six years old. R. testified that Hargitt "would . . . lift up my nightgown and go under my underwear, and he would fondle with me." He would move his fingers around in her vaginal area while she lay in bed. Though R. could not give an exact number of times this happened in her bed, she testified that she was positive it happened more than four times, as "[t]hat's where it happened most of the time."
R. also testified that one time while she was in Hargitt's car alone with him he reached over and unbuttoned her jeans and then went under her underwear and fondled her while driving. He would also sometimes fondle her vagina while they were watching movies. E. was present, but on the floor during these events, Hargitt's wife would be asleep, and Hargitt would lift up R.'s nightgown and put his hand under her underwear.
R. estimated that all together, Hargitt molested her between 30 and 40 times. It ended when she was eight or nine years old.
R. did not tell anyone about Hargitt's actions until she was in eighth grade, when she was 13 or 14 years old. The first person she told was a friend. The friend encouraged R. to tell a teacher about what happened, and R. eventually did so.
By amended information, the State charged Hargitt with four counts of child molestation in the first degree. A jury found him guilty on all counts.
Hargitt appeals.
NONHEARSAY
Hargitt argues that the trial court improperly admitted hearsay evidence of a statement made by R. to Addleman. Because the statement was not hearsay, we disagree.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Hearsay is generally not admissible as evidence.
ER 801(c).
ER 802.
Prior consistent statements of a witness are not hearsay if offered to rebut the suggestion that the witness's testimony is a recent fabrication. ER 801(d)(1)(ii) provides:
A statement is not hearsay if —
(1) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
The rule allows admission of a witness's out-of-court statements to rehabilitate testimony that has been impugned by a suggestion of recent fabrication. While mere cross-examination of a witness cannot justify admission of prior consistent statements, where the inferences raised in cross-examination are sufficient to allow counsel to argue motive to fabricate, the statements may be admitted to rebut those inferences. The prior statement must have been made before a motive to falsify had arisen.
State v. Bargas, 52 Wn. App. 700, 702, 763 P.2d 470 (1988).
State v. Osborn, 59 Wn. App. 1, 7, 795 P.2d 1174 (1990) (citing State v. Dictado, 102 Wn.2d 277, 290, 687 P.2d 172 (1984) abrogation on other grounds recognized in State v. Short, 113 Wn.2d 35, 40, 775 P.2d 458 (1989)).
Bargas, 52 Wn. App. at 703.
Under ER 801(a)(1), a "statement" is an oral or written assertion. Under traditional hearsay analysis, the definition of hearsay does not include questions or requests. Washington case law is consistent with this analysis.
5B Karl B. Tegland, Washington Practice: Evidence Law and Practice § 801.3, at 320 (5th ed. 2007).
See State v. Flett, 40 Wn. App. 277, 287, 699 P.2d 774 (1985) (declarant's question, "Did you take the bastard home?" was not hearsay because not offered to prove the truth of the matter asserted); State v. Fish, 99 Wn. App. 86, 96, 992 P.2d 505 (1999) (declarant's requests for driver to "pull over" and drop passengers off were commands, not assertions of fact).
We review a trial court's decision as to the admissibility of evidence under an abuse of discretion standard. When a trial court's exercise of its discretion is manifestly unreasonable or based upon untenable grounds or reasons, an abuse of discretion exists.
Stenson, 132 Wn.2d at 701.
Id.
Here, R. testified on direct examination that she did not tell anyone about Hargitt's actions when she was ages six through nine because "[i]t was our secret" and she "didn't think it was wrong." In third or fourth grade, R. learned about the difference between "good touch" and "bad touch" in school and then knew that Hargitt's actions were wrong. R. responded by not going to Hargitt's house as much and trying to "be around people the whole time" at Hargitt's house so as to not be alone with him. She did not tell anyone about the abuse at that point because she did not want to tear up her family and she "just wanted to pretend like it didn't happen." R. did not tell anyone about the abuse between the time that she was nine and thirteen, but it "started weighing on [her] more" when she was in middle school. She first told one of her best friends, a boy named J.S., when she was in eighth grade.
On cross-examination, defense counsel vigorously challenged R.'s memory of the events surrounding the molestation and her reporting of it. Counsel asked why she had not told her grandmother or her brother about Hargitt molesting her. Counsel asked several questions focusing on the fact that R. did not tell anyone about Hargitt's actions over the course of the three or four years that it went on. Counsel then spent a significant amount of time asking R. about her disclosure to her friend J.S. Counsel's line of questioning implied that R. did not tell the truth to J.S. and instead just went along with his suggestions. J.S. was the one who brought up the topic of molestation, J.S. was the one that asked her whether something like that had ever happened to her, and J.S. "suggested" and was "the catalyst" for R. telling her teacher about the abuse. The State elicited testimony from Addleman, R.'s grandmother, that when R. started spending weekends with Hargitt and his wife, R. was "always excited to go spend the weekend up there." But there was a time, when R. was eight or nine years old, that R. started saying that she did not want to go to Hargitt's house. One weekend, Hargitt's wife called Addleman to invite R. and E. up to their house. Over Hargitt's objection, the trial court allowed testimony that R. told Addleman, "well, I don't want to go, could you say that we have something else planned?"
The first portion of the admitted testimony — "well, I don't want to go" — was properly admitted under ER 801(d)(1)(ii). The cross-examination of R. permitted defense counsel to argue that R., beginning with her report to J.S., made up her testimony that Hargitt molested her. The trial court therefore acted within its discretion in allowing the State to rebut the charge of recent fabrication with a prior consistent statement by R. to Addleman that corroborated R.'s disclosures to J.S.
The second portion of the admitted testimony was a request or question, not an assertion: "could you say we have something else planned?" This was not a "statement" within the scope of ER 801. The trial court did not abuse its discretion in admitting this portion of the testimony.
See Flett, 40 Wn. App. at 287 (declarant's question was not hearsay because not offered to prove the truth of the matter asserted); Fish, 99 Wn. App. at 96) (declarant's requests were not assertions of fact).
Because we conclude that the admitted testimony was not hearsay, we need not address Hargitt's argument that the trial court erred in denying his request for a limiting instruction with regard to the testimony.
In his reply brief, Hargitt argues that the doctrine of judicial estoppel should preclude the State's arguments on appeal with respect to the alleged hearsay testimony. But the "heart of the doctrine is the prevention of inconsistent positions as to facts. It does not require counsel to be consistent on points of law." Here, the State's position on appeal was not factually inconsistent with its arguments to the trial court. The doctrine of judicial estoppel does not apply.
Reply Brief of Appellant at 1; Cunningham v. Reliable Concrete, 126 Wn. App. 222, 108 P.3d 147 (2005) (failure to disclose pre-petition claim in bankruptcy schedules precluded later assertion of that claim in separate court action).
King v. Clodfelter, 10 Wn. App. 514, 521, 518 P.2d 206 (1974).
PRIOR IN CONSISTENT STATEMENTS
Hargitt argues that the trial court erred in its application of ER 613 with respect to the admission of recorded statements given by his wife Christine. We disagree.
We adopt the parties' use of Christine Hargitt's first name for purposes of clarity.
ER 613(b) provides that extrinsic evidence of a prior inconsistent statement is not admissible in the absence of a proper foundation. The rule states in part, "Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon."
ER 613(b); State v. Horton, 116 Wn. App. 909, 914, 68 P.3d 1145 (2003).
Again, we review a trial court's decision as to the admissibility of evidence under an abuse of discretion standard.
Stenson, 132 Wn.2d at 701.
Here, one focal point of Christine's testimony was that the molestation at R.'s bedtime could not have happened as early as R. recalled because she initially slept in the same bedroom as her brother E. E. was born in 1990. Christine testified that R. and E. started spending the night at the Hargitts' home around 1995. She converted a video room into a guest bedroom with red bunk beds for E. in 2000. According to Christine, before 2000, E. only slept in a different room when guest overflow necessitated a change from E. and R. sharing a bedroom.
During a lunch break that fell during defense counsel's direct examination of Christine, the State requested that Christine review portions of an audio recorded interview she had given to the State prior to trial. The State indicated its intention to impeach her, if necessary, with statements she made during that interview. Christine listened to portions of the tape during the lunch hour.
During cross-examination, the State questioned Christine about the interview, drawing her attention to her previous statements regarding the timing of when E. and R. stopped regularly sharing a bedroom:
Report of Proceedings (December 10, 2008) at 334.
Q: And I asked you how long [E.] and [R.] slept together in the same room, and you said that when [E.] was 8, 7 or 8, he moved to the futon [in the separate room]; do you remember that?
A: No, I don't recall.
Q: Okay. Would it help you if I played that portion of the interview for you?
A: I believe, yeah.
Id. at 335-36.
At that point, defense counsel objected to the recorded interview being played for the jury, arguing that it was only appropriate to play it for Christine if the State was using the interview to refresh Christine's memory. The State indicated that it intended to play the tape for the jury, and defense counsel argued that he had an objection "unless she denies making a statement." The court then conducted an unrecorded sidebar conference with counsel from both sides and ultimately allowed the State to play the tape for the jury.
After the tape was played, the State continued questioning Christine:
Q: So that's what you said in that interview; correct?
A: (Witness nods.)
Q: Okay.
A: I was just in err [sic].
Id. at 337.
Duringredirect examination, defense counsel gave Christine an opportunity to explain how she could have made the error in her earlier interview with the State and how she came to know that her initial statement was incorrect.
On appeal, Hargitt only argues that the trial court erred in allowing the State to play the recorded interview before Christine had the opportunity to deny or explain the prior statement. But a plain reading of ER 613 reveals no requirement that the opportunity to explain or deny necessarily comes before the inconsistent statement is introduced. Division Two of this court has reached a conclusion consistent with the plain language of the rule, explaining:
"Prerule case law required the examiner, before introducing extrinsic evidence of a prior inconsistent statement, to direct the declarant's attention to the exact content of the allegedly contradictory statement as well as to the time and place where the declarant made the statement and to the persons present. Under ER 613(b), however, it is sufficient for the examiner to give the declarant an opportunity to explain or deny the statement, either on cross-examination or after the introduction of extrinsic evidence."
Horton, 116 Wn. App. at 916 (quoting State v. Johnson, 90 Wn. App. 54, 70, 950 P.2d 981 (1998)).
Here, Christine was provided abundant opportunity to explain or deny the prior inconsistent statement and did so. The timing of her opportunity to explain or deny the statement was of no consequence here. The trial court did not abuse its discretion or violate ER 613 in admitting extrinsic evidence of the statement.
Hargitt argues that our supreme court, in State v. Dixon, recognized that the opportunity to explain or deny a prior inconsistent statement must be provided before extrinsic evidence of the statement is admitted at trial. In Dixon, counsel gave the opportunity to explain the particular statement prior to the introduction of the statement. The supreme court, in passing, states that this was "consistent with the requirements of ER 613(b)." The court does not state that offering the opportunity to explain or deny afterward would have been inconsistent with the plain language of ER 613(b).
159 Wn.2d 65, 76, 147 P.3d 991 (2006).
Id. at 76.
Id.
Hargitt next argues that the State, in its closing remarks, improperly argued the impeachment evidence as substantive evidence of Hargitt's guilt. "Impeachment evidence affects the witness's credibility but is not probative of the substantive facts encompassed by the evidence." Such evidence cannot be used as substantive proof of guilt. But here, a review of the State's closing reveals that the State appropriately referred to Christine's prior inconsistent statements for impeachment, not substantive, purposes.
State v. Clinkenbeard, 130 Wn. App. 552, 569, 123 P.3d 872 (2005).
Id.
CUMULATIVE ERROR
Hargitt argues that cumulative error denied him a fair trial. We disagree.
Where several errors standing alone do not warrant reversal, the cumulative error doctrine requires reversal when the combined effects of the errors denied the defendant a fair trial. Because we conclude the court did not err by admitting any of the above evidence, Hargitt's cumulative error argument is without merit.
State v. Coe, 101 Wn.2d 772, 789, 684 P.2d 668 (1984).
We affirm the judgment and sentence.
We Concur: