No. 50902-1-IThe Court of Appeals of Washington, Division One.
Filed: July 21, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 01-1-07842-5 Judgment or order under review Date filed: 07/10/2002
Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.
Counsel for Respondent(s), Richard L Anderson, Attorney at Law, King Cnty Pros Crim Div, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.
COLEMAN, J.
A jury found appellant Jorge Aguila-Bello guilty of two counts of first degree child rape and one count of attempted first degree child rape. Because defense counsel’s decision not to cross-examine the complaining witness can be characterized as legitimate trial strategy, Aguila-Bello was not denied effective assistance of counsel. Accordingly, we affirm. Jorge Aguila-Bello was charged by amended information with two counts of first degree child rape and one count of attempted first degree child rape.
At trial, Lydia Herrera testified that in 2000 and 2001, she was living in a Redmond apartment with her 10-year-old daughter G.F., three other children, her husband Manuel Vasquez, who was G.F.’s step-father, and her sister Mercedes. In about the spring of 2000, appellant Aguila-Bello, who is Manuel’s cousin, also moved in with the family.
In about June 2001, Mercedes called Herrera at work and told her that G.F. had asked some unusual questions. The following day, Herrera asked G.F. what had prompted the questions. At first, G.F. denied that anything had happened, but finally admitted that `Uncle Jorge’ had abused her. Herrera and Manuel then confronted Aguila-Bello about G.F.’s allegations. Aguila-Bello denied that anything had happened. Herrera informed Aguila-Bello that she would be calling the police and taking G.F. to the doctor.
Because Herrera and Manuel had to go to work that evening, they took all of their children with them. When they returned later that night, Aguila-Bello had left. The next day, Herrera brought G.F. to her pediatrician, who reported the allegations to the police. Herrera also testified about two incidents in which G.F. had reported blood in her urine. One of the incidents occurred several weeks before G.F. had disclosed the abuse. The first incident had occurred about nine months earlier. After the first incident, Herrera had taken G.F. to the doctor.
When the doctor asked, G.F. had denied that anyone had touched her. G.F., who was 11 at the time of trial, testified that she had asked Mercedes whether her father would `stand up for’ her in court or for Aguila-Bello and whether a 10-year-old could become pregnant. G.F. then described several incidents in which Aguila-Bello had touched her. G.F. testified that the first incident occurred in the family room on a day when her mother and step-father were shopping. G.F. was sitting on a couch watching television when Aguila-Bello sat down next to her and kissed her on the mouth. G.F. said that Aguila-Bello did not do anything else on this occasion. During the second incident, Aguila-Bello pulled down G.F.’s pants and underwear, put his hand on her private parts, and then put his finger inside her. G.F. first said that this incident occurred in her mother’s bedroom, but later indicated that it occurred in her own bedroom. G.F. concluded by saying that it occurred in her mother’s bedroom. G.F. described an incident that occurred when Aguila-Bello came into the bathroom while she was combing her hair. Aguila-Bello then kissed her on the mouth, pulled down her pants, and put his finger `up my vagina.’ In a similar incident, Aguila-Bello came into G.F.’s bedroom, kissed her, and put his finger `inside’ G.F.’s vagina. G.F. also described a separate incident in her mother’s bedroom in which Aguila-Bello made her touch his penis.
The final incident that G.F. described occurred one morning while she was getting ready for school. Aguila-Bello, who was sitting on the couch, motioned G.F. to come over. Aguila-Bello then unzipped G.F.’s pants and put his finger in her vagina. Defense counsel did not cross-examine G.F. Aguila-Bello testified that he had come to the United States to find work and support his wife and child in Mexico. Shortly after moving in with Manuel, he started working part-time for Allied Movers. Aguila-Bello maintained that he had gotten along well with G.F. and that he had never punished her. One day, G.F. came to Aguila-Bello and told him that she had `had sex’ with Manuel and another man named Rubin, who was living with the family at the time. G.F. made Aguila-Bello promise that he would not tell anyone about the abuse. G.F. indicated that she had told her mother about the abuse and that her mother had spoken to Manuel about it. After G.F. reported the abuse, Manuel threatened to kill Aguila-Bello if something happened to him. Aguila-Bello told Manuel that he would leave to avoid getting him into trouble. Aguila-Bello denied G.F.’s accusations and explained that she might have made them because she was afraid of Manuel.
A jury found Aguila-Bello guilty as charged, and he received a standard-range sentence. On appeal, Aguila-Bello contends that he was denied effective assistance of counsel when defense counsel failed to cross-examine G.F. He argues that because G.F. provided the only evidence of the charged crimes and was unable to testify in significant detail, defense counsel should have cross-examined her about `variations’ between her trial testimony and the accounts she gave to the police. In particular, Aguila-Bello points to inconsistencies involving which rooms certain incidents occurred in and whether Aguila-Bello had ever touched G.F. with his penis. Aguila-Bello maintains that his case could only have benefited from cross examination about these inconsistencies.
In order to establish ineffective assistance of counsel, a defendant must demonstrate both (1) that his or her attorney’s representation fell below an objective standard of reasonableness, and (2) resulting prejudice, i.e., a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.[1] There is a strong presumption that a defendant received effective representation, and the defendant carries the burden of demonstrating that there was no legitimate strategic or tactical rationale for the challenged conduct.[2] Defense counsel in this case made a deliberate tactical decision not to cross-examine G.F. `A decision not to cross examine a witness is often tactical because counsel may be concerned about opening the door to damaging rebuttal or because cross examination may not provide evidence useful to the defense.’[3] Defense counsel could reasonably have concluded that given the age of the victim and the absence of any clear bias or motive for fabrication, the inconsistencies between her trial testimony and some of the details she provided earlier to the police had scant impeachment value. Consequently, further cross examination could have bolstered the credibility of G.F.’s trial testimony and increased juror sympathy for the child witness. Defense counsel was in a far better position to make such an assessment than this court.[4] Instead of attacking G.F.’s credibility directly, defense counsel’s strategy was clearly an attempt to create reasonable doubt by bolstering his own client’s credibility. Aguila-Bello testified in his own defense, offered a possible motive for G.F.’s accusations, and identified two possible suspects in the abuse. Moreover, during closing argument, defense counsel was able to call attention to the vagueness and other weaknesses of G.F.’s direct testimony without the need for cross examination. Under the circumstances, we cannot say that defense counsel’s choices were unreasonable. Because defense counsel’s decision not to cross-examine G.F. can be characterized as legitimate trial strategy, it cannot form the basis for a claim of ineffective assistance of counsel.[5]
Affirmed.
ELLINGTON and APPELWICK, JJ., concur.
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