STATE v. KIM, 49474-1-I (Wash.App. 9-22-2003)

No. 49474-1-I.The Court of Appeals of Washington, Division One.
Filed: September 22, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of King County Docket No: 00-8-04097-2 Judgment or order under review Date filed: 10/19/2001

Counsel for Appellant(s), Sean P. Wickens, Berneburg Wickens PS, 602 S Yakima Ave, Tacoma, WA 98405-4801.

Counsel for Respondent(s), Prosecuting Atty King County, King County Prosecutor/appellate Unit, 1850 Key Tower, 700 Fifth Avenue, Seattle, WA 98104.

Dennis John McCurdy, Pros Attorneys Ofc/Apellate Unit, 1850 Key Tower, 700 5th Ave, Seattle, WA 98104.

COX, A.C.J.

G.K., a minor, appeals his conviction for one count of rape of a child in the first degree. He argues that the trial court abused its discretion when it found the victim, M.M., competent to testify. G.K. maintains that the independent corroboration requirement for the admission of child sexual abuse hearsay statements was not met. He further argues that the trial court abused its discretion when it refused his request for a second interview with M.M. Further, he claims that the trial court abused its discretion, procedurally and substantively, regarding expert testimony on the potential for the tainting of M.M.’s statements. Finally, G.K. contends that the trial court abused its discretion when it excluded expert testimony on the issue of the alleged personality disorder of M.M.

G.K. failed to preserve for review his challenge that M.M. was not competent to testify. Exercising our discretion to reach the issue of the independent corroboration requirement for the admitted hearsay statements, we hold that such corroboration was not necessary. M.M. was `available as a witness’ at the hearing. The trial court did not abuse its discretion either by refusing G.K.’s request for a second interview with M.M. or in designating the method of the offer of proof for excluded expert testimony. Moreover, the court did not abuse its discretion when it excluded expert testimony about M.M.’s alleged personality disorder. Finally, we cannot say that the trial court abused its discretion when it excluded expert testimony concerning the potential tainting of M.M.’s statements by improper interview techniques.

M.M. and her brother Mark were neighbors and friends of G.K. M.M. was four at the time of the incident and G.K. was thirteen. M.M. and Mark were watching cartoons with G.K. at his house when he took M.M. upstairs to his bedroom and told Mark to stay downstairs. At some point Mark went upstairs and tried to get into G.K.’s room but G.K. slammed the door. G.K. did not have a lock on the door to his room. Mark persisted and G.K. threatened to rip his face off. When the bedroom door was open, Mark observed M.M. sitting on G.K.’s bed crying. Eventually, Mark stopped trying to get into G.K.’s room. While in the bedroom, G.K. allegedly forced his penis into M.M.’s mouth. Mark did not witness this.

The next day, while at the grocery store with her father, M.M. stated, `Greggie made me suck his weenie.’ When her father asked her to repeat what she said, M.M. stated, `Greggie put his wiener in my mouth.’ M.M. repeated this statement to her mother when they returned home. M.M. also told her mother that G.K. pulled her pants down and touched her in the crotch area.

The charges against G.K. included rape of a child in the first degree, child molestation in the first degree, and harassment. On January 30, 2001, a fact-finding hearing took place to determine M.M.’s competency to testify. She was found competent. That afternoon, G.K. entered a plea of guilty to one count of rape of a child in the first degree. Almost six months later, G.K. withdrew his guilty plea. The case was reassigned to a different judge, and G.K. retained new counsel. G.K. was found guilty of rape of a child in the first degree. G.K. appeals.

COMPETENCE TO TESTIFY
G.K. argues that the trial court abused its discretion when it determined that M.M. was competent to testify. We conclude that G.K. did not preserve this issue for review.

The original competency hearing was held on January 30, 2001 before a judge pro tem. Six months later, the case was reassigned to a judge who conducted the fact-finding hearing, following G.K.’s withdrawal of his guilty plea and acquisition of new counsel. M.M. testified briefly prior to the hearing to establish that she was still oriented as to time and place of the alleged incidents and still able to distinguish between truth and lies. The judge expressly stated that the purpose of the testimony `was not to go into, again, issues related to the broader concepts of competency.’[1] The court concluded that it was satisfied that M.M. was still oriented to time and place and was still able to distinguish between truth and lies.[2] On appeal, G.K. failed to designate the record of the original competency hearing before the judge pro tem. Nothing in the record that is before us indicates that G.K. objected below to either judge’s competency determination. Nor did G.K. move for a new hearing or for reconsideration on the issue of competency upon hearing the fact-finding judge’s oral ruling at the end of the case stating:

The statements made by Morgan to her parents, in my view, are the most significant of the statements that are in evidence. The testimony Morgan gave in court is of less value because of the nature of the child’s memory and ability to relate events. I think it’s unlikely that Morgan can, in September of 2001, remember events that happened in July of 2000.

I believe it’s more likely that she is, in essence, repeating that which she has said before, and whatever inconsistencies there were in her testimony were probably due to her not having an independent and fresh memory of events from over a year ago.[3]

While G.K. now characterizes this oral ruling as a decision that M.M. was not competent to testify, we do not read it that way. Rather, these comments go to the weight of M.M.’s testimony only. G.K. did not properly preserve this issue for appellate review.[4]

INDEPENDENT CORROBORATION
G.K. argues that the trial court abused its discretion when it found that Mark, M.M.’s brother, provided independent corroboration for M.M.’s hearsay statements under RCW 9A.44.120(2)(b). While G.K. failed to preserve this issue for our review, we nevertheless exercise our discretion to reach it.[5] We hold that M.M. was available and that corroboration was not necessary for the admission of her hearsay statements.

RCW 9A.44.120 governs the admission of child hearsay describing an act of sexual abuse. If a child witness testifies at a criminal trial or a dependency hearing, the child’s out-of-court statements concerning abuse are admissible if the court finds `the time, content, and circumstances of the statement provide sufficient indicia of reliability{.}’[6] If the child is unavailable to testify at trial, additional corroboration of the hearsay statements is also required before the hearsay will be allowed.[7] We review the trial court’s determination of admissibility under RCW 9A.44.120 for abuse of discretion.[8]

M.M. was found competent and testified at the fact-finding and adjudication hearings. She was available. Accordingly, the corroboration requirement need not be satisfied to admit M.M.’s hearsay statements, provided the statements are found to be admissible and provide sufficient indicia of reliability, which G.K. does not challenge.

The corroboration requirement was not triggered because M.M. was available to testify.

Furthermore, G.K.’s challenge to the corroborative value of Mark’s statements does not go to the content of the statements, but to Mark’s credibility. G.K. argues that because Mark did not comment on the incident until after he heard his mother and sister discussing it, Mark’s statements are not credible. But credibility determinations are left to the fact finder.[9] The judge determined that Mark’s testimony was credible. That determination stands.

INTERVIEW OF VICTIM
G.K. argues that the trial court abused its discretion and violated his constitutional rights to confrontation of witnesses, due process, and effective assistance of counsel when it refused to allow his new counsel an opportunity to interview the victim prior to the hearing. We conclude that the trial court did not abuse its discretion when it refused G.K.’s request for a second interview with M.M.

G.K.’s argument that the confrontation clause is implicated here is unpersuasive. A defendant in a criminal case has a right to interview witnesses, but this right coexists equally with the witnesses’ right to refuse an interview.[10] The Sixth Amendment’s Confrontation Clause, made applicable to the States through the Fourteenth Amendment,[11]
provides ‘{i}n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’ The Clause envisions:

a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.[12]

G.K. does not argue that the court denied him the right to confront M.M. or any other witness during the hearing. Nor did the court deny him the right to interview M.M. prior to the hearing. G.K.’s first trial counsel interviewed M.M. G.K.’s new counsel had access to the interview notes and information resulting from that interview.[13] Yet G.K. argues that the refusal of his request to have a psychologist interview M.M. somehow violated his right to confrontation. G.K. cites no authority for the proposition that refusal to allow a second defense interview of the complaining witness prior to trial constitutes a confrontation clause violation. We must assume that absent citation to authority, G.K. has found none.[14]

G.K.’s citation to Gregory v. United States[15] is inapposite. In that case, the prosecutor instructed witnesses that they were not to meet with defense counsel unless he was present and the trial court refused to compel the government to allow the defense to `talk to a government witness.’[16] The court reversed and held that the prosecutor’s instructions to the witnesses denied the defendant a fair trial.[17]
G.K. contends that the holding of that case is applicable here because the court denied his counsel the opportunity to interview the complaining witness. As noted above, G.K.’s first counsel did interview M.M. and G.K.’s new counsel had the notes from that interview.

The scope of discovery, as well as the determination whether to allow another interview of a witness, is within the discretion of the trial court.[18] The record does not support the conclusion that the trial court acted unreasonably when it refused a request for a second defense interview of M.M. G.K. also argues that his right to effective assistance of counsel was violated. Although G.K. hints that this right may be implicated, he otherwise fails to brief the applicable law. Without citation to authority, we need not consider an argument.[19] We conclude that the trial court did not abuse its discretion by refusing to allow a second defense interview of M.M.

OFFER OF PROOF
G.K. argues that the trial court abused its discretion when it declined to consider his offer of proof through live testimony of an expert witness. We disagree.

An offer of proof performs three functions: it informs the court of the legal theory under which the offered evidence is admissible; it informs the judge of the specific nature of the offered evidence so that the court can assess its admissibility; and it creates a record adequate for review.[20] `An offer of proof assists the trial court in evaluating its ruling and assists the appellate court by assuring that it has an adequate record to review the merits of the evidentiary issue. An offer of proof may be made as a matter of right.’[21] ER 103(a)(2)(b) expressly leaves to the discretion of the trial court `the form in which {the offer of proof} was offered.’ The most effective method, and the one preferred by appellate courts, `is to have the jury excused and to question the witness on the record as if the jury were present.’[22]
But if the substance of the excluded evidence is apparent, the offer is sufficient.[23]

Here, review of the record shows that the substance of the excluded evidence is apparent. G.K. first raised the subject of Dr. Mark Whitehill’s testimony at the hearing to satisfy the court that M.M. was still oriented to time and place and was still able to distinguish between truth and lies. He explained that the object of the testimony was to show that improper interviewing or questioning of a child by adults could affect the reliability of statements.[24] The testimony was to be based on Dr. Whitehill’s review of records memorializing interviews of the child. The court observed at the time that such testimony would go to the weight, not admissibility, of the child’s statements under the hearsay statute.[25] G.K. offered to prepare a declaration with attachments to amplify the substance of the testimony, to which the State objected. The court expressly stated that it was making no ruling on the State’s objection to the offer to present such a declaration.[26] No such declaration was ever presented to the court.

The following day, the court took up the matter again. The judge reiterated to counsel that he could not put Dr. Whitehill on the stand, but that he could summarize what the doctor would say as an offer of proof.[27] Counsel indicated that he could not recite, in detail, what the doctor would say. Nevertheless, he articulated that the substance of the testimony would first involve the concept that a child would feel pressure to repeat prior allegations of alleged sexual abuse when later questioned about such allegations. Second, he stated the testimony would also go to the effect that the parents’ preconceived notions about G.K.’s character would have on their questioning of M.M. Next, he stated the expert would testify that Nicole Farrell’s questioning was inappropriate and inadequate. Lastly, he stated the expert would testify about a recent diagnosis of M.M. showing an alleged behavioral disorder related to her motive to lie.

This summary makes apparent the substance of the excluded testimony, notwithstanding the lack of the technical explanations that actual testimony by the doctor might have given. And nowhere in the record is there support for G.K.’s contention at oral argument that the trial court prevented him from submitting Dr. Whitehill’s written declaration as an offer of proof to supplement the summary that counsel gave. As we already noted, the court expressly stated that it was making no ruling on the State’s objection to that request.

G.K.’s argument that his offer of proof was inadequate because he could not present Dr. Whitehill’s live testimony is not persuasive. G.K. cites no authority for the proposition that a trial judge must allow counsel to present an offer of proof in whatever form counsel desires. And the controlling rule states that the form of presentation is subject to the court’s exercise of its discretion.

In short, there was no abuse of discretion in how the court chose to handle the offer of proof procedure for expert testimony in this case.

EXPERT TESTIMONY — TAINT
G.K. argues that the trial court abused its discretion when it refused to allow him to present expert testimony on the potential for the tainting of a victim’s statements by improper interview techniques. We cannot say that the trial court abused its discretion by excluding this expert testimony.

A properly qualified expert may testify concerning matters requiring special experience, skill, or education for reaching reasonable and rational conclusions.[28] Because the admissibility of such testimony rests within the discretion of the trial court, the trial court’s ruling denying admissibility will not be overturned unless the exercise of discretion was manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.[29] ‘{T}he propriety and effect of specific interviewing techniques on children in sex abuse cases may be a proper subject for expert testimony so long as the witness has proper qualifications, relies on generally accepted theories, and the proffered testimony is helpful to the trier of fact.’[30]

Here the judge was the sole trier of fact. The judge noted that the facts of this case, for the most part, did not raise questions concerning taint arising from improper interviewing techniques. Rather, most of M.M.’s statements were spontaneous. In doing so, the court expressly distinguished this case from In re Dependency of A.E.P.[31] Moreover, the judge concluded that expert testimony would not be helpful to her for another reason:

I am mindful of the issues around a young child’s allegations of sexual abuse. Mr. Wickens incorporated throughout the trial and in his argument several points regarding issues when a child of this age has made such allegations. And I think he has made valid points. Young children are suggestible, they say things to get attention, their inability to abstract results in their saying things that may be inaccurate or misleading

So it was with great care and consideration of these issues that I approached the evidence.[32]

Anyone, be it judge or jury, may learn more by hearing expert testimony about the subject of taint as it relates to allegations by children of alleged sexual abuse. But that is not the test. Rather, the question is whether the trial court, as opposed to a jury, would have found such evidence helpful under the circumstances of this case. We caution that expert testimony on interviewing techniques and the potential for tainted statements is not merely a matter of common sense, but constitutes `specialized knowledge’ that is not likely to be within the common experience of a jury.[33] But we are not prepared to second guess the court’s statement here that it was aware of the dangers and carefully considered those dangers in its approach to the evidence. While such an approach may not be appropriate in all cases, we cannot say, on this record, that the court abused its discretion by declining to hear live expert testimony on this subject.

EXPERT TESTIMONY — PERSONALITY DISORDER
G.K. argues that the trial court abused its discretion when it refused to allow Dr. Whitehill to testify about M.M.’s alleged personality disorder.

We conclude that the trial court did not abuse its discretion in excluding expert testimony on this issue. ER 703 governs the extent to which an expert witness may state an opinion or inference based on information other than what the expert has personally observed. An expert may express an opinion based on facts or data `reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.’[34] The decision to admit expert testimony about the psychological condition of a witness is within the sound discretion of the trial court.[35] We will not disturb such a ruling unless it is based on untenable grounds or untenable reasons.[36]

G.K. claims that Dr. Monica Bristow evaluated and provisionally diagnosed M.M. with oppositional defiant disorder on the morning of July 27, 2000 due to her history of tantrums. This diagnosis was based only on a 15-minute face-to-face introductory meeting with M.M. It was M.M.’s only meeting with Dr. Bristow. G.K. asked Dr. Whitehill to review the transcript of Dr. Bristow’s deposition, in the hope that Dr. Whitehill could testify about how this disorder might affect M.M.’s ability to tell the truth.

But G.K. failed to follow through with the trial court’s request for evidence of some nexus between the disorder and M.M.’s credibility. The trial judge expressed her concern about the relevance of G.K.’s proposed expert testimony if G.K. was unable to provide some concrete information about how the disorder affects the truthfulness and need for attention of children generally, and M.M. in particular.

G.K.’s counsel responded that he did not know that the doctor would be able to make that connection. G.K.’s counsel later conceded that he did not think Dr. Bristow would testify about the nexus between the disorder and M.M.’s credibility given that the doctor’s diagnosis was only provisional, and her contact with M.M. was limited to one 15-minute introductory interview.

The trial judge asked G.K. to contact the doctor and make some presentation to the court about whether the testimony would be relevant to the credibility issue. There is no indication in the record that G.K. ever raised this issue again.

Thus, G.K. conceded that the doctor who provisionally diagnosed M.M. with this disorder was unable or unwilling to testify to any nexus between the disorder and M.M.’s credibility based on her extremely limited exposure to the child. Yet G.K. wanted Dr. Whitehill to testify to M.M.’s credibility based only on his review of Dr. Bristow’s deposition testimony. And G.K. failed to offer evidence to the court of any nexus between the disorder and M.M.’s credibility. The trial court did not abuse its discretion in excluding this expert testimony.

We affirm the order of disposition.

WE CONCUR.