No. 26297-9-III.The Court of Appeals of Washington, Division Three.
July 22, 2008.
Appeal from a judgment of the Superior Court for Stevens County, No. 05-1-00197-1, Rebecca M. Baker, J., entered June 26, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Kulik, A.C.J., and Korsmo, J.
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]UNPUBLISHED OPINION
BROWN, J.
Preston L. Carbary, a family counselor, appeals his three second degree rape convictions involving one of his clients. He contends the trial court erred in allowing similar conduct evidence under ER 404(b) and in refusing two definitional instructions. Further, for the first time on appeal, Mr. Carbary contends a State’s witness improperly commented on his guilt when responding to cross-examination. Pro se, he contends insufficient evidence supports his convictions. We reject Mr. Carbary’s contentions, and affirm.
FACTS
In October 2004, Mr. Carbary, a licensed mental health counselor in private practice providing state family preservation services began counseling P.R.’s family. P.R. reported to Dr. Barry J. Bacon that Mr. Carbary repeatedly forced her to have intercourse, threatening to remove her children from her home if she told anyone. Dr. Bacon contacted the prosecutor’s office. The State charged Mr. Carbary with three counts of second degree rape under the health-care provider alternative in RCW 9A.44.050(1)(d).
Before trial, the court entered an ER 404(b) order, allowing testimony from T.C., about similar happenings. During trial, T.C. testified Mr. Carbary came to her home from June 2004 to August 2004 as a family preservationist counselor. T.C. testified Mr. Carbary would come over after the children were asleep and have sexual intercourse with her. He threatened her if she told anyone, “[H]e would tell everybody that I was a whore and that he would have everybody think I was crazy and insane and have my kids taken away.” Report of Proceedings (RP) at 332. In September 2004, he threatened T.C. that if she did not come to his home he would have her children taken away. She complied. After T.C.’s children were removed from her home, she reported the incidents to her resource advocate.
Dr. Bacon generally testified on direct examination that P.R. told him in bits and pieces about forced sexual contact between her and Mr. Carbary over a period of time until he gathered enough information to report P.R.’s rape to authorities. When asked to describe P.R.’s description of the forced sexual contact, he answered: “I don’t recall a lot of the details at this time.” RP at 189. During cross-examination, defense counsel inquired about when Dr. Bacon reported the rapes to the prosecutor’s office, asking, “[w]ell was it in this May visit that she gave the details that you delivered on direct as to how the rape had occurred?” RP at 205. Dr. Bacon replied, “She gave some of those details sufficient that I felt that a rape had occurred.” RP at 205. Defense counsel again asked for exactly what P.R. said about the rapes, and Dr. Bacon answered, “I do recall that I had enough detail to be convinced that a rape had occurred.” RP at 206. Defense counsel did not object to Dr. Bacon’s responses.
Mr. Carbary proposed two jury instructions: one defining “treatment session” and the other defining “[m]ental health counseling.” Clerk’s Papers at 100-01. The court rejected both instructions, concluding Mr. Carbary could argue his theory of the case with the instructions given. The jury found Mr. Carbary guilty as charged. He appealed.
ANALYSIS A. Evidence Rulings
The issue is whether the trial court erred by abusing its discretion in allowing T.C.’s ER 404(b) “bad act” testimony. The court did not err.
We review a trial court’s decision as to the admissibility of evidence under an abuse of discretion standard. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). When a trial court’s decision is manifestly unreasonable or based upon untenable grounds or reasons, an abuse of discretion exists. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995).
ER 404(b) provides: “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.” Similar happenings may be admitted to prove a scheme or plan that the offense charged manifests. State v. Lough, 125 Wn.2d 847, 853-54, 889 P.2d 487
(1995). “[A]dmission of evidence of a common scheme or plan requires substantial similarity between the prior bad acts and the charged crime. Such evidence is relevant when the existence of the crime is at issue. Sufficient similarity is reached only when the trial court determines that the `various acts are naturally to be explained as caused by a general plan.'” State v. DeVincentis, 150 Wn.2d 11, 21, 74 P.3d 119 (2003) (quoting Lough, 125 Wn.2d at 860).
A trial court must conduct a four-part Lough analysis to determine if “the prior acts were (1) proved by a preponderance of the evidence, (2) offered for the purpose of proving a common plan or scheme, (3) relevant to prove an element of the crime charged or to rebut a defense, and (4) more probative than prejudicial.” DeVincentis, 150 Wn.2d at 22 (citing Lough, 125 Wn.2d at 852). After briefing and oral argument, the court orally reasoned through each Lough factor.
First, the court found substantial evidence that the similar rapes had occurred.
Although no charges resulted from the similar conduct, the court noted ER 404(b) does not require that charges must follow. Second, the court found T.C.’s testimony showed Mr. Carbary acted with an identifiable plan to use his position of power against vulnerable clients for sexual gratification and assure the women’s silence with threats of exposure. Third, the court found T.C.’s testimony was relevant to prove sexual intercourse; defense counsel had informed the court that Mr. Carbary would be denying intercourse. T.C.’s evidence was thus, relevant. Fourth, the court weighed the probative value with the prejudicial effect, striking the balance in favor of the probative value. The jury was given an appropriate limiting instruction.
Because the trial court provides tenable grounds for each of the Lough factors, there is no abuse of discretion. The trial court properly admitted T.C.’s testimony.
B. Manifest Constitutional Error — Dr. Bacon’s Testimony
The issue, raised for the first time on appeal, is whether Dr. Bacon impermissibly commented on the ultimate issue of Mr. Carbary’s guilt. We hold Mr. Carbary fails to raise manifest constitutional error that may be considered for the first time here.
Mr. Carbary focuses solely on Dr. Bacon’s cross-examination responses. Defense counsel asked Dr. Bacon, “Well was it in this May visit that [P.R.] gave the details that you delivered on direct as to how the rape had occurred?” RP at 205. Dr. Bacon replied, “She gave some of those details sufficient that I felt that a rape had occurred.” RP at 205. On follow-up cross-examination, Dr. Bacon replied, “I do recall that I had enough detail to be convinced that a rape had occurred.” RP at 206. Defense counsel did not object to Dr. Bacon’s responses.
Neither lay nor expert witnesses are permitted to opine as to the guilt of the defendant. State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987). The issue of whether Dr. Bacon’s responses should have been admitted is raised for the first time on appeal. Proper objection must be made at trial to perceived errors in admitting or excluding evidence and failure to do so precludes raising the issue on appeal. State v. Guloy, 104 Wn.2d 412, 421, 705 P.2d 1182 (1985). “`[A] litigant cannot remain silent as to claimed error during trial and later, for the first time, urge objections thereto on appeal.'” Id. (quoting Bellevue Sch. Dist. 405 v. Lee, 70 Wn.2d 947, 950, 425 P.2d 902 (1967)). The exception is a manifest error affecting a constitutional right. RAP 2.5(a).
Manifest constitutional error first requires establishing the error. Our Supreme Court recently held that opinion testimony indirectly related to an ultimate fact is not a “manifest” constitutional error that may be raised for the first time on appeal, unless it is “nearly explicit.” State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007). Dr. Bacon’s response to defense counsel’s questions about the rape details that led to his prosecution report were not a “nearly explicit” statement about credibility or guilt. Kirkman, 159 Wn.2d at 936. Dr. Bacon’s testimony that over time he elicited sufficient rape details from P.R. to justify his report to authorities is not a direct statement of belief in the ultimate fact justifying application of the narrow manifest constitutional error exception allowing this issue to be raised for the first time on appeal.
Further, Mr. Carbary fails to establish the second requirement to establish manifest constitutional error, actual prejudice. Actual prejudice requires a plausible showing of practical and identifiable consequences. Id. at 935. Defense counsel’s attempt to elicit contradictory details given by P.R. to Dr. Bacon for impeachment of P.R.’s testimony was a legitimate trial tactic, and unlikely to be misunderstood as Dr. Bacon’s opinion of Mr. Carbary’s guilt. Thus, Mr. Carbary fails to establish constitutional error.
Moreover, any error in allowing the testimony was harmless beyond a reasonable doubt, considering the lack of demonstrable prejudice. Id. at 927 (manifest constitutional error subject to harmless error analysis). The same vague account of details was given by Dr. Bacon on direct testimony without objection. Further, P.R. testified about her rape evidence and T.C. gave compellingly similar testimony.
C. Assistance of Counsel
The issue is whether Mr. Carbary was denied his right to effective assistance of counsel because defense counsel failed to object to Dr. Bacon’s opinion testimony. At argument, appellate counsel argued defense counsel should not have asked Dr. Bacon questions about the rape details given by P.R. that led to his reporting.
To prove ineffective assistance of counsel, the claimant must show deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). If counsel’s conduct can be characterized as legitimate trial tactics or strategy, then that conduct cannot serve as the basis for a claim of ineffective assistance of counsel. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280
(2002). To prevail on a claim of ineffective assistance of counsel based on defense counsel’s failure to object, the defendant must show (1) the absence of a legitimate strategic or tactical reason for not objecting, (2) that the trial court would have sustained the objection if made, and (3) the result of the trial would have differed if the evidence had not been admitted. State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364
(1998).
Defense counsel attacked Dr. Bacon’s inability to give the details of P.R.’s rape report. Dr. Bacon answered, “[P.R.] gave some of those details sufficient that I felt that a rape had occurred.” RP at 205. And, “I do recall that I had enough detail to be convinced that a rape had occurred.” RP at 206. Mr. Carbary argues defense counsel should have objected to the answers as unpermitted opinions of his guilt. Generally, a witness may not provide opinion testimony, directly or by inference, regarding the defendant’s guilt. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001).
Dr. Bacon answered defense counsel’s questions using language similar to the language of the question, i.e., counsel asked about the reporting of “details” of “how the rape occurred” and Dr. Bacon replied, the “details” sufficiently convinced him “a rape had occurred.” RP at 205. Because the answer was largely responsive, defense counsel had no basis to object. Moving to strike Dr. Bacon’s answers might call unfavorable attention to the testimony. Defense counsel’s decision not to object was tactical. The decision to inquire in the first place was also tactical because Dr. Bacon was uncertain for a time if he had sufficient details to merit a rape report. Further, the opportunity to impeach P.R.’s testimony with potentially contradictory rape reports merited some inquiry. Mr. Carbary fails to show deficient performance. And any prejudice is minimal considering that P.R. directly testified about her rape and T.C. gave similar happening evidence.
D. Instructions
The next issue is whether the trial court erred by abusing its discretion in refusing to give Mr. Carbary’s proposed jury instructions. Mr. Carbary argues he was unable to argue his theory of the case because the court did not provide definitional instructions on the terms, “treatment sessions” and “mental health counseling.” We disagree.
While claimed errors in jury instructions are generally reviewed de novo, it is within the trial court’s sound discretion to determine the appropriateness of granting a request to define words of common understanding. State v. Cross, 156 Wn.2d 580, 617, 132 P.3d 80 (2006). “Trial courts must define technical words and expressions but not those that are self-explanatory or within ordinary understanding.” Id.
To be found guilty of second degree rape (health care provider), the accused must have engaged in sexual intercourse with “a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination.” RCW 9A.44.050(1)(d). Here, the court provided a definitional instruction for “treatment.” (See Jury Instruction No. 15.) To provide a definitional instruction on “treatment sessions” would be superfluous. Further, the other terms included in RCW 9A.44.050(1)(d) (i.e., consultation, interview, and examination) would go undefined. Further still, “treatment sessions” is self-explanatory.
The trial court did not err in refusing to provide the jury with Mr. Carbary’s “mental health counseling” instruction. Mental health counseling was not an element of the crime charged and the proposed definition was technical and unclear. Therefore, the trial court did not abuse its discretion to reject the instructions.
E. Additional Grounds
Pro se, Mr. Carbary first challenges the court’s admission of T.C.’s testimony and, second, he argues that sufficient evidence does not support his convictions. Since trial counsel adequately briefed the prior victim testimony contention, we turn to the evidence sufficiency arguments. See RAP 10.10(a) (purpose of statement of additional grounds for review is to address issues not adequately raised by counsel).
Mr. Carbary’s concern is that no physical evidence links him to the crimes. Evidence is sufficient if a rational trier of fact taking it in the light most favorable to the State could find each element of the crime beyond a reasonable doubt. State v. Nicholson, 119 Wn. App. 855, 859, 84 P.3d 877 (2003). The trier of fact resolves inconsistencies in the testimony and issues of credibility. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850
(1990).
Evidence is sufficient to show second degree rape if, taken in the light most favorable to the State, it shows the person engages in sexual intercourse with another person, “[w]hen the perpetrator is a health care provider, the victim is a client or patient, and the sexual intercourse occurs during a treatment session, consultation, interview, or examination.” RCW 9A.44.050(1)(d).
Here, P.R., Dr. Bacon, and T.C. provided evidence of sexual intercourse while Mr. Carbary was working as a counselor. Credibility and the weight given evidence are within the province of the jury. Camarillo, 115 Wn.2d at 71. It will not be reweighed here. Viewing the evidence in the light most favorable to the State, a rational trier of fact could find each element of the crime beyond a reasonable doubt. Mr. Carbary’s sufficiency of the evidence challenge fails.
Affirmed.
A majority of the panel has determined 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.
Kulik, A.C.J. and Korsmo, J., Concur.
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