No. 32971-9-II.The Court of Appeals of Washington, Division Two.
Filed: April 11, 2006.
UNPUBLISHED OPINION
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]
Appeal from Superior Court of Cowlitz County. Docket No: 04-1-01380-9. Judgment or order under review. Date filed: 03/02/2005. Judge signing: Hon. James J. Stonier.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Amie L. Hunt, Hall of Justice, Cowlitz Prosecuting Attorneys Office, 312 SW 1st Ave, Kelso, WA 98626-1739.
QUINN-BRINTNALL, C.J.
A jury convicted Michael Hibberd of three counts of second degree child molestation. On appeal, he maintains that the evidence was insufficient to support two of the three counts and that the trial court abused its discretion in not treating all counts as the same criminal conduct for sentencing purposes. Hibberd raises several additional issues in a Statement of Additional Grounds (SAG).[1] We affirm.
FACTS
Shawna Petersen agreed to stay at a friend’s home and care for the friend’s two children for two days and nights. The children included an eight-year-old boy and twelve-year-old M.O. On the first night, Petersen went out with her on-again, off-again boy friend, Hibberd. During the evening, the two talked about getting together the next day. Petersen told Hibberd that she would be spending the day with the children but that she had to leave at noon to visit her mother. The two agreed to call each other when Petersen returned from the visit and that the two would get together.
Petersen left the children at her friend’s home the next day around noon and returned approximately one hour later. While Petersen was gone, Hibberd went to the friend’s home. M.O. answered the door and Hibberd asked if Petersen was home. Hibberd told M.O. that he had bought ice cream bars for everyone and he came inside. M.O. took a bar and sat down on a couch to eat it. Hibberd sat down next to M.O. and, as she was eating the ice cream, he began tickling and wrestling with her. Hibberd and M.O. had never engaged in such behavior in their prior interactions.
M.O. was about to kick Hibberd away from her when his hand seemed to slip onto her breast. Hibberd’s hand remained there for `a few seconds.’ 1 Report of Proceedings (RP) at 95. M.O. became uncomfortable and turned away from Hibberd.
To get Hibberd out of the house, M.O. asked him to go buy her more ice cream. Hibberd acquiesced but, as he was leaving, Petersen returned in her car. Hibberd’s presence at the home seemed odd to Petersen, at least in part because she had previously told Hibberd that M.O. was not to be alone with adult men because her grandfather had molested her. Hibberd told Petersen that he had brought ice cream and that he was going to get more, but she told him to come back inside.
Over the next several hours, Hibberd played with the children, and Petersen and Hibberd went to the store to buy M.O. a belated birthday present. Later, Petersen, Hibberd, and the children began cleaning the house. Hibberd and M.O. untied shoes that were tied and knotted on the stairwell banister.
At one point, M.O. attempted to walk past Hibberd on the stairs. Hibberd stopped M.O., reached underneath her shirt with both hands, and placed his hands on her breasts. Hibberd kept his hands there for approximately 30 seconds. Hibberd squeezed M.O.’s breasts and made sounds `like he was enjoying it.’ 1 RP at 107.
M.O. eventually pushed Hibberd away and she went to a different part of the house. M.O. did not tell Petersen what happened because she was afraid of hurting Petersen’s feelings and of not being believed.
After the incident, Petersen, Hibberd, and the children went out for dinner and to the video rental and grocery store. When they returned to the home at 9 p.m., the children watched a movie in the living room, and Petersen and Hibberd watched a movie and television in the bedroom. Petersen asked Hibberd to spend the night and he accepted. Around 3:30 a.m., Hibberd told Petersen that he was going to the store to get something to drink. Petersen then fell asleep.
M.O. fell asleep some time between midnight and 1 a.m. M.O. was awakened during the night by someone poking her and saying, `[H]ey, hey.’ 1 RP at 115. M.O. believed this occurred long after she fell asleep. The fingers did not feel like Petersen’s because she wore fake fingernails. M.O. thought it was Hibberd because of the earlier incidents, so she turned away and went back to sleep.
M.O. was awakened again by someone sticking a hand down her pants. The hand was big and rough. The hand went about an inch under M.O.’s underwear and she became very scared. M.O. did not look to see who it was and she turned away and pretended to still be asleep. The hand then pulled out of M.O.’s pants. M.O. tried to fall back asleep, deciding that she would wait to tell her mother what happened when she returned.
M.O. woke up around 3 a.m. to the sound of the front door shutting. M.O. looked out the window to see Hibberd’s car gone. M.O. locked the door and began pacing around the house. At some point, Hibberd began knocking on the front door. M.O. went to Petersen and asked her not to let Hibberd in. M.O. was shaking and appeared to be on the verge of crying. M.O. told Petersen what had happened. Petersen then told Hibberd to go home.
The State charged Hibberd with three counts of second degree child molestation. Before trial, the court granted defense counsel’s motion to exclude all witnesses from the courtroom. The court also heard from Hibberd, who told the court that he did not know if it was `too good of an idea’ for defense counsel to be representing him. 1 RP at 1. Defense counsel explained that Hibberd was concerned about his current representation of Petersen’s mother in a separate and unrelated matter. Petersen’s mother was not a proposed witness for Hibberd’s trial. Defense counsel opined, and the court agreed, that the two representations were not conflicting interests.
During trial, a juror informed the court that seven to eight years before trial, he had lived in the home where the alleged molestations occurred. Defense counsel conferred with Hibberd and told him that they should consider asking for a mistrial, which defense counsel believed would be granted. Hibberd apparently rejected the idea and defense counsel so informed the court: `I think we’ve fully and fairly and carefully considered our options and we decided to continue the trial today.’ 2 RP at 146. The court instructed the juror not to disclose his knowledge of the house with any other jurors.
Also during trial, the court was informed of an incident where several jurors rode in an elevator with M.O. and her mother. Defense counsel moved for a mistrial. The court denied the motion after the jurors were questioned and they indicated that no facial expressions or communications were exchanged or overheard. The jury had previously been instructed not to have contact with any witnesses.
The jury found Hibberd guilty as charged. At sentencing, defense counsel requested that the court treat all three counts as the same criminal conduct for purposes of calculating Hibberd’s offender score. The court denied the motion because there was a significant time lapse between each of the incidents and because each incident occurred in a different location of the home.
This appeal followed.
ANALYSIS Sufficiency of the Evidence
Hibberd challenges the sufficiency of the evidence for count I, the couch incident, and count III, the nighttime incident; he does not challenge count II, the stairwell incident. A person is guilty of second degree child molestation when the person has sexual contact with another who is at least 12 years old but less than 14 years old and not married to the perpetrator and the perpetrator is at least 36 months older than the victim. RCW 9A.44.086(1). `Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party. RCW 9A.44.010(2).
A challenge to the sufficiency of the evidence admits the truth of the State’s evidence and all reasonable inferences that can be drawn from it. State v. Goodman, 150 Wn.2d 774, 781, 83 P.3d 410 (2004). We give direct or circumstantial evidence equal weight. Goodman, 150 Wn.2d at 781. This court will affirm a jury’s guilty verdict if the evidence, when viewed in the light most favorable to the State, permits any rational trier of fact to find all the elements of the crime beyond a reasonable doubt. Goodman, 150 Wn.2d at 781.
Turning first to count I, Hibberd maintains that the evidence was insufficient to establish that his brief touching of M.O.’s breast while tickling her was done to satisfy his sexual desire. Evidence of sexual gratification is carefully scrutinized when the touching is over the child’s clothing and is fleeting and readily capable of innocent explanation. State v. Price, 127 Wn. App. 193, 202, 110 P.3d 1171
(2005), review granted in part, 156 Wn.2d 1005 (2006). Here, M.O. testified that Hibberd’s hand remained on her breast for a few seconds. This touch is not fleeting or suggestive of an accident. The jury could consider that 12-year-old M.O. and Hibberd had never engaged in such wrestling and tickling behavior before. The jury also could consider the questionable nature of Hibberd’s visit when Petersen had told him that she would be gone and M.O. was not to be alone with adult men. In assessing whether the touch was accidental, the jury could further consider Hibberd’s later and prolonged touching of M.O.’s breasts on the stairwell. See ER 404(b) (other acts admissible as proof of absence of mistake or accident);
State v. Whisenhunt, 96 Wn. App. 18, 24, 980 P.2d 232 (1999) (evidence sufficient where the defendant touched child under her skirt but over her body suit on three separate occasions). There was sufficient evidence that the touching related to count I was for the purpose of satisfying Hibberd’s sexual desire.
Hibberd also maintains that the evidence was insufficient on count III to establish that he was the person sticking his or her hand down M.O.’s pants and underwear. M.O. did not look to see whose hand it was and she did not testify to details about the voice of the person poking her and saying `[H]ey, hey.’ 1 RP at 115. But M.O. testified that the hand was big and rough, suggestive of an adult male hand. M.O. also testified that the person poking her was not Petersen, the only other adult in the house. The incident fit the general timeline of when Hibberd told Petersen he was leaving to go to the store and she fell asleep. In addition, once the jury found Hibberd guilty on counts I and II, it could have considered those acts and their increasing aggressiveness to determine the identity of the culprit of M.O.’s third molestation in a single day. See ER 404(b) (prior acts admissible to establish identity). The evidence of identity on count
III was sufficient. Same Criminal Conduct
Multiple current offenses are counted separately for offender score purposes unless the offenses involve the same criminal conduct. RCW 9.94A.589(1)(a). Current offenses involve the same criminal conduct only when they `require the same criminal intent, are committed at the same time and place, and involve the same victim.’ RCW 9.94A.589(1)(a). We narrowly construe the requirements for same criminal conduct. State v. Porter, 133 Wn.2d 177, 181, 942 P.2d 974 (1997). The sentencing court has broad discretion to determine what constitutes same criminal conduct. State v. Haddock, 141 Wn.2d 103, 110, 3 P.3d 733 (2000). The court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. In re Pers. Restraint of Davis, 152 Wn.2d 647, 691, 101 P.3d 1 (2004).
Hibberd maintains that the sentencing court abused its discretion in refusing to treat the three molestations as the same criminal conduct. Our decision in State v. Grantham, 84 Wn. App. 854, 932 P.2d 657
(1997), supports the court’s ruling. There, the defendant anally raped a woman and forced her to perform oral sex on him. In between the two acts, the defendant beat and threatened the woman and refused her requests to let her go. On appeal, the defendant argued that the sentencing court erred in not treating his two rape convictions as the same criminal conduct. We disagreed:
[T]he trial court could find that Grantham, upon completing the act of forced anal intercourse, had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act. He chose the latter, forming a new intent to commit the second act. The crimes were sequential, not simultaneous or continuous. The evidence also supports the trial court’s conclusion that each act of sexual intercourse was complete in itself; one did not depend upon the other or further the other.
Grantham, 84 Wn. App. at 859. See also State v. Tili, 139 Wn.2d 107, 123-24, 985 P.2d 365 (1999) (favorably discussing and distinguishing Grantham from situation where three rape convictions resulted from the defendant’s nearly continuous digital and penile penetration of victim’s anus and vagina).
According to Hibberd, because he was `constantly in pursuit’ of M.O., the molestations are the same criminal conduct because they were part of a single grooming plan leading to an objective of some greater evil. We emphatically reject this assertion. Hibberd’s position would lead to the absurd differential treatment of child molesters: one would be punished for each of his molestations if they were of the same general nature, while one would be punished only once for an untold number of molestations if the molestations were increasingly aggressive and aimed to further a singular goal such as completed sexual intercourse with the child. Further, Hibberd’s argument ignores the narrowly-construed requirement that the multiple offenses occurred at `the same time.’ RCW 9.94A.589(1)(a).
Hibberd molested M.O. three times over a span of at least 13 hours. The molestations were each separated by several hours of routine daily activities. The long breaks between each molestation allowed Hibberd the time and opportunity to pause, reflect, and either cease his behavior or proceed to commit a further criminal act. The sentencing court did not abuse its discretion in refusing to treat Hibberd’s convictions as the same criminal conduct.
Conflict of Interest
Hibberd maintains in his SAG that the trial court erred in not appointing new counsel due to his current counsel’s representation of Petersen’s mother in a different matter. But Hibberd did not ask the court to appoint new counsel; rather, Hibberd sought only an assurance from the court that the concurrent representation would not impact his right to effective assistance of counsel. The court, like defense counsel, concluded that it did not. This was not error.
The right to legal representation includes the right to an attorney who is free from actual conflicts of interest or a serious potential for conflict. State v. MacDonald, 122 Wn. App. 804, 812-13, 95 P.3d 1248
(2004), review denied, 153 Wn.2d 1006 (2005). An actual conflict of interest exists when a defense attorney owes duties to a party whose interests are adverse to the defendant’s. Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002) (conflict of interest requires a `division of loyalties’ that affected counsel’s performance); MacDonald, 122 Wn. App. at 813. A conflict will be found when the attorney represents two clients in substantially related matters. MacDonald, 122 Wn. App. at 813-14 (counsel could not represent the defendant on a molestation charge where counsel had previously represented the mother of the accuser in a marital dissolution matter).
The record contains no details of defense counsel’s representation of Petersen’s mother. Hibberd states in his SAG that the representation concerned a methamphetamine charge, but he does not claim that the two cases share any facts. Defense counsel believed that the two matters were completely unrelated. Petersen’s mother was not a witness in Hibberd’s trial and she was, at best, tangentially relevant as the person Petersen was with when Hibberd first molested M.O. This fact was not at issue. The court correctly concluded that no conflict of interest existed.
Change of Venue
Hibberd maintains in his SAG that the trial court should have granted a change of venue to Clark County. But the record here does not reflect that Hibberd brought a motion for a change of venue. See CrR 5.2(b); State v. Tolias, 135 Wn.2d 133, 140-41, 954 P.2d 907 (1998) (appellate court may not decide an issue on the basis of facts not in the record). Nor does Hibberd explain why such a motion was appropriate. See generally State v. Jackson, 150 Wn.2d 251, 269, 76 P.3d 217 (2003) (trial court has broad discretion to grant or deny motion for change of venue). This assignment of error cannot be addressed further on this record.
Mistrial Motions
Hibberd also maintains in his SAG that the trial court erred in not granting one of his several motions for a mistrial. A trial court has broad discretion to deny a motion for a mistrial. State v. Rodriguez, 146 Wn.2d 260, 269, 45 P.3d 541 (2002). A court should grant a mistrial only when the defendant has been so prejudiced that nothing short of a new trial can insure that the defendant will be tried fairly. Rodriguez, 146 Wn.2d at 270.
Hibberd asserts that a mistrial should have been granted due to the incident where jurors rode in an elevator with M.O. and her mother. But the court instructed the jury not to have contact with witnesses and it questioned the jury to ensure that the jury had complied in this instance. Hibberd argues that the jurors possibly lied to the court. The jurors’ credibility was for the trial court to decide. State v. Elmore, 155 Wn.2d 758, 778, 123 P.3d 72 (2005); Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003); see also State v. Stackhouse, 90 Wn. App. 344, 350, 957 P.2d 218 (challenge to a juror’s impartiality must be based on more than speculation), review denied, 136 Wn.2d 1002 (1998). Because there was no possible prejudice from the elevator incident, the trial court did not abuse its discretion in denying Hibberd’s motion for a mistrial.
Hibberd asserts that a mistrial should have been granted when a juror disclosed that he had once lived in the home where the alleged molestations occurred. But Hibberd chose to proceed with trial and not to bring a motion for a mistrial on this basis. Hibberd did not ask that the juror be excused from further service. Moreover, Hibberd has shown no prejudice. Hibberd cannot raise this issue now. See State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046
(1991).
Hibberd lastly asserts that a mistrial should have been granted when M.O. violated the court’s pretrial order by sitting in the courtroom after she finished testifying. But the record does not reflect that this occurred or that Hibberd objected or brought a mistrial motion on this basis. See Tolias, 135 Wn.2d at 140-41. Nor does Hibberd explain how such an incident, if it occurred, was prejudicial. Thus, we do not address this issue further.
Affirmed.
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 VAN DEREN, J., concur.