STATE v. KINCHLER, 120 Wn. App. 1027 (2004)

No. 28465-1-II.The Court of Appeals of Washington, Division Two.
Filed: February 24, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of Clallam County. Docket No: 01-1-00103-4. Judgment or order under review. Date filed: 02/22/2002. Judge signing: Hon. Kenneth Day Williams.

Counsel for Appellant(s), Sherryl A. Jones, Attorney at Law, PO Box 1869, Port Townsend, WA 98368-0058.

Counsel for Respondent(s), Lauren Michele Erickson, Attorney at Law, Clallam Co Prosc Atty Ofc, 223 E 4th St, Port Angeles, WA 98362-3015.

SEINFELD, P.J.

Patrick J. Kinchler III appeals from four convictions of child molestation. He argues insufficiency of the evidence, lack of jury unanimity, and a clearly excessive exceptional sentence. He also filed a statement of additional grounds for review (SAG)[1] in which he asserts jury bias and ineffective assistance of counsel. We affirm.

Facts
The victims of the four child molestation counts were Kinchler’s two stepdaughters, K.M.F., born March 24, 1986, and K.A.F. born January 1, 1989.[2] On April 3, 2001, K.M.F. told her mother that Kinchler had been molesting her and K.A.F. for over three years. Both girls testified at trial that they consistently masturbated Kinchler in return for special things he would do for them, such as buy them food or give them drugs, alcohol, or money. Many times the sisters performed this sexual service together, usually inside their home, but sometimes they acted alone. The sisters also testified about a time when they both masturbated Kinchler while watching pornographic videos.

Kinchler also required his wife to perform sexual acts in exchange for his permission for her to do such things as visit relatives or go out with friends. Kinchler routinely groped his wife in front of K.M.F. and K.A.F. Following a four day trial, the jury convicted Kinchler of the following four counts of child molestation: Count I, first degree molestation of K.A.F. (before she turned 12); Count II, second degree molestation of K.A.F. (after she turned 12); Count III, second degree molestation of K.M.F. (before she turned 14); and Count IV, third degree molestation of K.M.F. (after she turned 14). The court then imposed an exceptional sentence of 252 months, or 21 years, because of Kinchler’s severe abuse of his stepdaughters’ trust.

Analysis I. Sufficiency of the Evidence
Kinchler challenges the sufficiency of the evidence to support Count II, that he molested K.A.F. after she turned 12; and to support Count IV, that he molested K.M.F. after she turned 14.[3]

Evidence is sufficient to support a conviction if, when viewed in the light most favorable to the State, it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. State v. Tilton, 149 Wn.2d 775, 786, 72 P.3d 735 (2003). `A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom.’ State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992) (citation omitted). Circumstantial evidence is as reliable as direct evidence. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact regarding a witness’ credibility or conflicting testimony. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788
(1996).

Washington courts use a three prong test to evaluate the evidence in a child molestation case.

First, the alleged victim must describe the kind of act or acts with sufficient specificity to allow the trier of fact to determine what offense, if any, has been committed. Second, the alleged victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged by the prosecution. Third, the alleged victim must be able to describe the general time period in which the acts occurred. Hayes, 81 Wn. App. at 438 (emphasis added).

By evaluating these prongs, the court `fairly balance[s] the due process rights of the accused against the inability of the young accuser to give extensive details regarding multiple alleged assaults.’ Hayes, 81 Wn. App. at 438. The trial court must also instruct the jury to unanimously agree on the act or acts that the State proved beyond a reasonable doubt. Hayes, 81 Wn. App. at 431.

Count II charged Kinchler with molesting K.A.F. between January 2001, when K.A.F. turned twelve, and April 2001, when the police arrested Kinchler. K.A.F. testified that she masturbated Kinchler in their home after she was twelve years old. And K.M.F. corroborated this testimony when she testified that after K.A.F. turned twelve, she saw her sister do this sexual act `once or twice.’ II Report of Proceedings (RP) at 36.

Kinchler complains that K.A.F.’s testimony referred only to sexual misconduct that occurred before K.A.F. was twelve. But the State specifically asked K.A.F. whether the masturbation behavior continued after 2001, to which K.A.F. responded: `Yeah, it did go on.’ III RP at 22.

This evidence, when viewed in the light most favorable to the State, is sufficient to allow a rational juror to find that Kinchler committed sexual misconduct with K.A.F. after her twelfth birthday, as charged in Count II.

Count IV involved incidents with K.M.F. beginning after her fourteenth birthday. K.M.F. testified that when she was fourteen years old, she masturbated Kinchler and that one time during a camping trip, he felt and groped her breasts. Although K.M.F. referred to earlier sexual misconduct in her testimony, she also described a specific pattern of sexual abuse that continued after she was fourteen years old. Thus, the evidence was sufficient to allow the jury to find that Kinchler committed two specific acts of sexual misconduct with K.M.F., masturbation and groping, after her fourteenth birthday.

Kinchler also contends that the girls were not credible because they were angry with him and, thus, motivated to lie. But we will not disturb a jury’s credibility determination. Camarillo, 115 Wn.2d at 71.

Finally, Kinchler challenges the jury’s unanimity on Counts II and IV. The court instructed the jury that it `must unanimously agree as to which act or acts have been proved beyond a reasonable doubt.’ And the jury demonstrated its understanding of the court’s instruction indicating a lack of agreement on Counts V and VII, but by unanimously finding Kinchler guilty of Counts I-IV. Clerk’s Papers (CP) at 43. Accordingly, Kinchler’s arguments are unpersuasive.

II. Exceptional Sentence
Kinchler contends that the trial court’s 252 month sentence was excessive.

A trial court may impose an exceptional sentence if it has substantial and compelling reasons for doing so. RCW 9.94A.535. We will reverse an exceptional sentence if the trial court’s reasoning is not justified as a matter of law, nor supported by the record, or if the sentence is `clearly excessive’ or `clearly too lenient.’ State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991) (citations omitted); RCW 9.94A.585(4). We review an exceptional sentence for an abuse of discretion and will find an exceptional sentence to be unreasonable if it is `exercised on untenable grounds or for untenable reasons, or [is] an action that no reasonable person would have taken.’ State v. Ritchie, 126 Wn.2d 388, 393, 894 P.2d 1308 (1995) (citing State v. Oxborrow, 106 Wn.2d 525, 531, 723 P.2d 1123 (1986)); State v. Jackson, 150 Wn.2d 251, 273, 76 P.3d 217 (2003).

Based on Kinchler’s offender score, the standard sentencing range for his most serious count, Count I, is between 149-198 months (16.5 years). The trial court imposed a sentence of 252 months (21 years), stating that it chose this length of time because Kinchler’s stepdaughters lost `their right as children’ and `we raise our children until they’re 21 years old and then turn them over to the world.’ RP (2/22/02) at 31-32. Considering Kinchler’s abuse of his stepchildren’s trust and the severe damage he caused to their childhood, we conclude that the exceptional sentence was neither unreasonable nor `clearly excessive.’ Grewe, 117 Wn.2d at 214. Thus, the trial court did not abuse its discretion by sentencing Kinchler to 252 months of imprisonment.

III. Jury Bias
In his SAG, Kinchler primarily challenges the jury selection process and alleges that he was tried by a biased jury. Kinchler asserts that the jurors indicated during voir dire that they knew about local news articles that discussed his trial. He does not provide these articles but even if he had, `[t]he relevant question is not whether the community remembered the case, but whether the jurors at [the] trial had such fixed opinions that they could not judge impartially the guilt of the defendant.’ Jackson, 150 Wn.2d at 269 (quoting Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984)).

Nothing in the record illustrates a biased jury selection process. The court excused a juror with a personal history of sexual abuse and Kinchler’s defense counsel thoroughly questioned numerous jurors, successfully convincing the court to excuse two of them. The court excused a total of eight jurors for cause based on potential bias against Kinchler and then excused six more jurors following peremptory challenges.

The trial judge, who is in the best position to evaluate the juror’s demeanor and character, is also in the best position to determine whether a juror is fair and impartial. State v. David, 118 Wn. App. 61, 69, 74 P.3d 686 (2003). Here, Kinchler’s contentions do not show an abuse of discretion by the trial judge. Further, this allegedly biased jury acquitted Kinchler of five counts.

Thus, this assignment of error lacks merit.

IV. Effective Assistance of Counsel
Kinchler also claims that he received ineffective assistance of counsel.

A defendant demonstrates ineffective assistance of counsel by proving (1) that counsel’s representation fell below an objective and reasonable standard; and (2) that counsel’s errors were serious enough to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Jeffries, 105 Wn.2d 398, 418, 717 P.2d 722 (1986). The defendant must `show deficient representation based on the record established in the proceedings below’ and overcome the strong presumption of effective assistance of counsel. State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995). When considering a claim that counsel was ineffective, we consider all of the circumstances of the defendant’s case. McFarland, 127 Wn.2d at 334-35; State v. Soonalole, 99 Wn. App. 207, 215, 992 P.2d 541 (2000).

There is no evidence here that Kinchler’s representation fell below an objective and reasonable standard. Kinchler challenges the diligence of his attorney, but he also states that he met with his attorney six times.

Kinchler complains that he told his attorney about a few potential defense witnesses and the attorney did not contact them. But Kinchler fails to specify how these witnesses would have materially assisted with his case. Further, Kinchler’s attorney successfully persuaded the jury to acquit based upon the insufficiency of the evidence on five counts, and after the State presented its case, defense counsel successfully persuaded the court to dismiss Count VI. See State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002) (when an attorney’s performance can be characterized as legitimate trial strategy or tactics, it cannot serve as a basis for a claim of ineffective assistance of counsel); State v. Krause, 82 Wn. App. 688, 697-98, 919 P.2d 123 (1996) (`A decision not to call a witness is a matter of trial tactics that generally will not support a claim of ineffective assistance of counsel.’). Finally, during the State’s cross examination, defense counsel made many successful evidentiary objections.

Thus, Kinchler does not demonstrate ineffective assistance of counsel.

We affirm.

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.

HOUGHTON, J. and ARMSTRONG, J., concur.