No. 33061-0-II.The Court of Appeals of Washington, Division Two.
October 3, 2006.
Appeal from a judgment of the Superior Court for Kitsap County, No. 04-1-01263-3, Russell W. Hartman, J., entered March 25, 2005.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Quinn-Brintnall and Penoyar, JJ.
Christine Quinn-brintnall, Thomas E. Weaver Jr., Attorney at Law, Po Box 1056, Bremerton, WA, Counsel for Appellant’s.
Randall Avery Sutton, Kitsap Co Prosecutor’s Office, Msc 35, 614 Division St, Port Orchard, WA, Counsel for Respondent’s.
ARMSTRONG, J.
George Michael Ray appeals his convictions for third degree child rape and second degree rape. His teenage daughter alleged that he abused her sexually for several years. When she recanted the accusations at trial, the State introduced evidence of her previous statements both as substantive evidence of the crimes and to impeach her. Ray contends that because, in the only statement admitted as substantive evidence, the victim gave a date for the latest incident that was clearly impossible, the evidence was insufficient to convict him of second degree rape. He also argues that his counsel was ineffective for not asking for a limiting instruction on how the jury could use the impeaching evidence. Ray also argues that the trial court erred in several evidentiary rulings, in instructing the jury, and in denying his challenge to a juror. Finally, Ray claims that the trial court should have granted a new trial because of newly discovered evidence. Finding no reversible error, we affirm.
FACTS
One summer night in 2004, 16-year-old JLR reported to her brother and some friends that her father, George Ray, had sexually abused her. The next day, she told Lisa Lopez[1] of the sexual abuse and showed Lisa and her daughter a bruise on her left thigh from the most recent incident. Several days later, JLR told Shawna Rye, a family friend, that her father had sexually abused her and showed Rye the bruises on her leg. Shawna convinced JLR that they should call the police.
When Officer Benny Myers interviewed JLR on Friday, August 6, she reported that her father had been having sex with her since she was 12 years old and until as recently as two weeks prior to August 6.
On August 12, 2004, Jane Schupay, a sexual assault nurse examiner, examined JLR. JLR told Schupay that the abuse began in Colorado when she was 12 when Ray put his hands between her legs one Christmas when the family was drinking. After the family moved to Washington in 2001, she and her father started having intercourse about twice a month and the last time had been “last Friday.” Report of Proceedings (Nov. 22, 2004) at 48. She said that on that day, she had threatened to tell someone about what was happening, and he had pushed her on the bed “and used a lot of force with intercourse and it hurt.” RP (Nov. 22, 2004) at 48. She claimed that in this incident, Ray left a thumb print on her inner thigh.
JLR told a similar story to Sasha Mangahas, a child interviewer at the Kitsap County prosecutor’s office. She said Ray had put his hands down her pants and touched her “all over the place.” RP (Nov. 16, 2004) at 706. Two weeks later, Ray pulled off her clothes, held her hands above her head, and started “fingering” her. RP (Nov. 16, 2004) at 709. Similar incidents occurred after the family moved to Washington, ultimately resulting in intercourse. Most recently, the family was at a barbeque and Ray took JLR home to change her clothes. He watched while she took a shower and then forced her into intercourse when she defied him, bruising her leg in the process.
The State charged Ray with second degree child rape, third degree child rape, and second degree rape. The second degree rape charge arose from the forceful intercourse on the day of the barbeque. Under each count, the Information contained special allegations of domestic violence, ongoing pattern of sexual abuse, and abuse of trust. While the Colorado abuse was not charged, the trial court allowed evidence of it to establish “the nature and terms and conditions of the relationship between the alleged victim and the defendant.” RP (Nov. 17, 2004) at 340.
During jury selection, juror number two divulged that her boyfriend was participating in the Special Sexual Offender Sentencing Alternative program after being accused of sexually molesting his stepdaughter. Although the juror expressed some doubts about her ability to be impartial, the trial court seated her on the jury after denying Ray’s challenge for cause.
On the first week of trial, JLR revealed that she was going to recant her testimony. She claimed that her previous allegations against her father were untrue and that she had said them because she was drunk and angry. The trial court granted the prosecutor’s request to treat JLR as a hostile witness. The prosecutor began asking her leading questions and impeaching her with prior inconsistent statements.
The trial court admitted JLR’s statements to Schupay as substantive evidence under the medical diagnosis or treatment hearsay exception. ER 803(4). As further substantive evidence, JLR’s brother and Lisa’s daughter testified that JLR had claimed to have been sexually abused. Rye and Officer Myers testified that JLR had claimed that her father sexually abused her. And Lisa, Lisa’s daughter, and Rye testified that they had seen the bruises on JLR’s leg. The trial court also admitted JLR’s statements to Sasha, but only as impeaching evidence.
Ray denied having a sexual relationship with his daughter. He testified that shortly before the time of the alleged second degree rape, he had undergone shoulder surgery, which greatly restricted his ability to use his right arm. He conceded, however, that due to the size disparity, he still could have pinned JLR down using just his weight.
Ray’s counsel did not request that the court instruct the jury that it could use impeaching evidence only in considering the victim’s credibility. The jury instructions contained a definition of “sexual intercourse,” which listed three different ways it could be accomplished. Clerk’s Papers (CP) at 69.
The jury acquitted on the count of second degree child rape and convicted on second degree rape and third degree child rape. By special verdict, the jury also found that each of the two convictions had occurred with the aggravating factors listed in the Information. The trial court imposed a standard range sentence.
After trial, Ray moved for a new trial on a number of grounds, including newly discovered evidence and ineffective assistance of counsel. The newly discovered evidence was a novel, With Secrets to Keep, by Rose Levit, which JLR had read before reporting Ray’s abuse. The book describes a teenage girl immersed in a relationship with her father similar to that described in JLR’s accusations against Ray. Ray also argued that defense counsel should have obtained his physical therapist’s report, which detailed the degree of impairment to his shoulder in the weeks following his surgery. The trial court denied the motion.
ANALYSIS I. Sufficiency of the Evidence
Ray argues that the evidence is insufficient to sustain the second degree rape conviction. JLR stated in her interview with Schupay that the forcible rape had occurred “last Friday.” RP (Nov. 22, 2004) at 48. But at the time of the interview, the preceding Friday was August 6, the date JLR reported her father’s conduct to the police, and it is undisputed that she had no contact with her father on that day. Claiming that Schupay’s testimony is the only substantive evidence of a forcible rape, Ray argues that no rational jury could convict on hearsay evidence that was apparently unreliable.
The test for determining the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found guilt beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 220-22, 616 P.2d 628 (1980). When the defendant in a criminal case challenges the sufficiency of evidence, we consider the evidence and all reasonable inferences from it in favor of the State. State v. Partin, 88 Wn.2d 899, 906-07, 567 P.2d 1136 (1977). The jury decides the credibility of witnesses, resolves conflicts in the evidence and determines the persuasiveness of evidence — decisions we do not review. State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004) (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
The instructions here did not require the jury to find that an act of second degree rape occurred on August 6, but rather between July 1 and August 10. Officer Myers testified that according to JLR, the final sexual contact occurred two weeks before his meeting with her on August 6. JLR told Schupay that the most recent act had been forced and that Ray had bruised her thigh on that occasion. Three other witnesses testified that JLR showed them these bruises one or two weeks before she reported the rape to police on August 6. Viewing this evidence most favorably to the State, a rational jury could have found that Ray forcibly raped JLR before August 6 and that JLR simply confused the dates when discussing the incident with Schupay. Thus, substantial evidence supports the jury’s finding.
II. Impeachment
Ray asserts that the State called JLR solely for purposes of impeachment and then impeached her without proper foundation. Generally, an issue cannot be raised for the first time on appeal unless it is a “manifest error affecting a constitutional right.” RAP 2.5(a); see also State v. Munguia, 107 Wn. App. 328, 340, 26 P.3d 1017 (2001). “An objection to the admissibility of evidence must be made to the trial court in order to preserve a claim of error on appeal.” State v. Davis, 141 Wn.2d 798, 850, 10 P.3d 977 (2000) (citing ER 103(a)).
Ray did not object to calling JLR as a witness on the ground that the State was calling her for impeachment. On the contrary, he stated that the State must call her before it could impeach her. Nor did Ray object to impeachment without foundation. He points to an objection raised when the State asked to treat JLR as a hostile witness. But treating a witness as hostile and impeaching a witness are two different issues. Compare ER 611(c) with ER 613. When the trial judge overruled the hostile witness objection, he explained that he was simply allowing the State to ask leading questions and that he would rule on any impeachment question “when the objection is made.” RP (Nov. 18, 2004) at 440. The examination then continued, and the defense did not object for lack of foundation to the prior inconsistent statements the State raised. Because Ray raised no objection to either of these claimed errors, and because neither was a manifest constitutional error, we decline to review them.
III. Limiting Instruction
Ray contends that his counsel should have requested an instruction limiting the jury’s consideration of the State’s impeachment evidence. Both amendment VI of the U.S. Constitution, and article I, section 22 of the Washington Constitution guarantee a criminal defendant effective assistance of counsel. To demonstrate that counsel was ineffective, a defendant must show that (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced him. In re Pers. Restraint of Woods, 154 Wn.2d 400, 420-21, 114 P.3d 607
(2005) (citing State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996)); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Counsel’s performance is deficient when it falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998). We give considerable deference to trial counsel’s performance and begin our analysis by presuming that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 (1995).
Ray has not shown that counsel’s failure to ask for a limiting instruction prejudiced him. Ray relies on State v. Sua, 115 Wn. App. 29, 49, 60 P.3d 1234 (2003). But Sua is distinguishable because the only evidence there was the impeaching evidence. Here, in contrast, JLR’s original story of abuse was before the jury as substantive evidence from Schupay’s testimony. In addition, four other witnesses corroborated Schupay’s version by testifying about JLR’s claims of sexual abuse; three of these witnesses saw the bruise JLR said her father had caused in the latest incident; and two of the witnesses said JLR named her father as the perpetrator. We conclude that it is not reasonably probable that the jury would have reached a different conclusion had it been instructed to limit its use of the impeaching evidence.
IV. Ray’s Medical Records
Ray also faults counsel for not obtaining evidence of his recent surgery and physical condition in July. After trial, replacement counsel subpoenaed medical records showing that Ray had undergone surgery on July 8. Ray’s physical therapist reported that as of July 14, Ray experienced significant pain if he bumped his right arm and he had extremely limited range of motion in that arm.
Again, Ray has not shown prejudice. Aside from the medical evidence, Ray admitted on cross-examination that at the time of the incident, with his weight alone, he could have pinned down someone of JLR’s size. Ray was six feet, three inches tall, weighing 252 pounds. And he agreed that JLR was “a pretty slender young woman.” RP (Nov. 29, 2004) at 858. Although he claims the injury made it unlikely he would have been able to make the bruises on JLR’s left thigh, the physical therapist’s report says nothing of his ability to use his hands. Thus, it is not reasonably probable that the jury, seeing this corroborating evidence of his shoulder pain and limited range of motion, would have concluded that Ray could not have committed the rape.
V. The Novel
Ray assigns error to the trial court’s refusal to grant a new trial on the ground of newly discovered evidence. The new evidence is the novel, With Secrets to Keep, by Rose Levit, which JLR claimed after trial was her motivation for inventing the rape story.
To obtain a new trial on the ground of newly discovered evidence, Ray must show (1) that the new evidence will probably change the result in a new trial; (2) that the evidence was discovered after the trial; (3) that it could not have been discovered previously by the exercise of diligence; (4) that it is material; and (5) that it is not merely cumulative or impeaching. Nelson v. Mueller, 85 Wn.2d 234, 239-40, 533 P.2d 383 (1975). We will not reverse an order denying a motion for new trial absent abuse of discretion by the trial court. See Aluminum Co. of Am. v. Aetna Cas. Sur. Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000); Robinson v. Safeway Stores, Inc., 113 Wn.2d 154, 158, 776 P.2d 676 (1989). The trial court found the first, third, and fifth elements missing.
The trial court found it unlikely that the book would have changed the trial result, explaining that the book could have supported either side’s theory of the case. While it may have supported JLR’s claim that her stories of rape were fabrications, it also could have bolstered the theory that her stories of rape were true because it is the type of book a sex abuse victim would read. In determining whether new evidence would probably change the trial outcome, the trial court must “pass upon the credibility, significance, and cogency of the proffered evidence.” State v. Goforth, 33 Wn. App. 405, 409, 655 P.2d 714 (1982) (citing State v. Peele, 67 Wn.2d 724, 409 P.2d 663 (1966)). Ray points to no incidents in the book mirroring the incidents JLR described. The novel contains, for example, no description of a forcible rape occurring during a family barbeque. If the book did describe such incidents, it would be persuasive evidence that JLR fabricated her initial story of the abuse and used the book as a model. But the book simply portrays a general theme of a father-daughter sexual relationship; thus, it offers little support for finding that JLR made up the abuse story.
Moreover, the book does not qualify as newly discovered evidence. When the parties learned that JLR would be recanting, they questioned her thoroughly about why she had changed her position. She knew then that she had read the book yet the attorneys elicited nothing from her about the book as a model for her claimed fabrication. When a witness’s testimony is available at the time of trial, it is not “newly discovered evidence.” Adams v. W. Host, 55 Wn. App. 601, 608, 779 P.2d 281
(1989) (holding that where a witness’s first declaration failed to establish res ipsa loquitur, a second declaration by the same witness after summary judgment was not newly discovered evidence).
Finally, the trial court found that the book’s content merely added to and was not dispositive of why JLR had changed her position. Ray counters that the book provides a context for why JLR lied. But JLR gave her reason for lying: she was drunk and angry with her father. The book adds nothing to that reason and explains only why she chose this particular story. We conclude that the trial court did not abuse its discretion in denying Ray’s motion for a new trial.
VI. Alternative Means
Ray argues that the trial court erred in instructing the court on alternative means of committing rape where substantial evidence does not support all the various means. The trial court’s definition of “sexual intercourse” included penile penetration of the vagina or anus, digital penetration of the vagina or anus, or oral contact with sex organs. These definitions, according to Ray, instruct on alternate means of committing the crimes charged. Moreover, Ray contends that the jury heard impeachment testimony, but no substantive testimony, regarding digital and oral intercourse; and, therefore, there was not substantial evidence to support these means and it is impossible to determine whether the jury based its decision on one of these means.
When a court instructs a jury on alternative means to commit a crime, substantial evidence must support each means unless the reviewing court can determine that the verdict was based on one of the means for which substantial evidence existed. State v. Bland, 71 Wn. App. 345, 353-54, 860 P.2d 1046 (1993). But definitional instructions do not create alternative means of committing a crime. State v. Winings, 126 Wn. App. 75, 89, 107 P.3d 141 (2005) (citing State v. Linehan, 147 Wn.2d 638, 648-49, 56 P.3d 542 (2002)). The Supreme Court’s analysis of the theft statutes illustrates the process of differentiating between alternate means and definitions. See Linehan, 147 Wn.2d at 647-48.
In Linehan, the court differentiated between RCW 9A.56.020, which defines the crime of theft, and RCW 9A.56.010, which defines the terms used in the theft and robbery chapter of the criminal code. Linehan, 147 Wn.2d at 648. The court agreed with the defendant that RCW 9A.56.020(a) creates alternate means of committing theft with the language “wrongfully obtain” or “exert unauthorized control [over.]” Linehan, 147 Wn.2d at 647-48. But the court disagreed that the description of “theft by embezzlement” in former RCW 9A.56.010(7)(b) created an additional alternative means; rather, it was one way to define the alternative means of wrongfully obtaining and exerting unauthorized control. Linehan, 147 Wn.2d at 648.
In most criminal statutes, including the rape statutes, the alternative means are expressed within the sections delineating the degrees. For example, first degree rape occurs when a person engages in sexual intercourse with another person by forcible compulsion, as stated in RCW 9A.44.040(1), and the subsections set out the alternative means: use of a deadly weapon, kidnapping, infliction of serious injury, or felony entry, as described in RCW 9A.44.040(1)(a)-(d). Linehan, 147 Wn.2d at 647.
Applying this analysis to the crimes in question, the instruction defining sexual intercourse did not provide alternative means. Second degree rape occurs when a person, under circumstances not amounting to first degree rape, engages in sexual intercourse with another, as stated in RCW 9A.44.050(1), and the alternative means are in the subsections: (a) by forcible compulsion, (b) against a physically helpless or mentally incapacitated victim, (c) by a perpetrator with supervisory authority over a developmentally disabled victim, (d) by a healthcare provider against a patient, (e) by a perpetrator with supervisory authority over a victim who is a resident of a facility for mentally disordered or chemically dependent persons, or (f) by a perpetrator not married to but having a significant relationship with a victim who is a frail elder or vulnerable adult. Here, the trial court instructed the jury only on the forcible compulsion means. Third degree child rape occurs when the perpetrator has sexual intercourse with a victim between the ages of 14 and 16, is at least 2 years older than the victim, and is not married to the victim. RCW 9A.44.079. The statute lists no alternate means. Thus, the trial court did not instruct Ray’s jury on alternative means.
VII. Proof of Prior Misconduct
Ray contends that the trial court erred in admitting evidence of his prior misconduct under ER 404(b) without first requiring the State to prove those acts by a preponderance of the evidence. The trial court admitted evidence of sexual contact between Ray and his daughter in Colorado based on an offer of proof in the form of an affidavit of probable cause. The State then elicited the evidence through Schupay’s testimony. Although Ray claims to have objected to the evidence of sexual acts with his daughter in Colorado, he does not cite to the record in support of this contention. According to the record, defense counsel initially claimed the affidavit of probable cause was insufficient because it relied entirely on hearsay. But later in the same discussion, counsel conceded: “The statement itself is probably adequate if the Court accepts the declaration of probable cause affidavit, probable cause is probably sufficient.” RP (Nov. 17, 2004) at 334. Accordingly, Ray did not preserve the error for appeal, and we decline to review it. See RAP 2.5(a).
VIII. Juror Number Two
Ray contends that the trial court should have sustained his challenge for cause to juror number two and that his counsel was ineffective in not subsequently challenging juror number two peremptorily. He argues that the juror was obviously biased because her boyfriend was participating in the Special Sexual Offender Sentencing Alternative (SSOSA) program after being accused of sexually molesting his stepdaughter. In addition, she made certain comments that called her impartiality into question, such as that her maternal instinct in such a case may sway her toward believing the child and that she possibly could not be fair toward the defendant in judging the case.
Because the trial court is in the best position to judge a potential juror’s demeanor and capacity for impartiality, we review its rulings on challenges for cause for manifest abuse of discretion. State v. Brown, 132 Wn.2d 529, 601-02, 940 P.2d 546
(1997). Here, Ray argued that the juror should be excused only because she was “way too close to the system,” and her knowledge of SSOSA might cause her to think it was an option for Ray, which was not the case. RP (Nov. 17, 2004) at 194. Ray concedes in his brief that the juror’s experience with the sex offender system would be insufficient to excuse her for cause. Thus, the trial court did not abuse its discretion in denying the challenge on this ground.
And to establish that counsel was ineffective for not peremptorily excusing the juror, Ray must show that counsel’s decision was not strategic. McFarland, 127 Wn.2d at 336. We allow counsel considerable latitude in making tactical decisions; we presume that counsel was effective. Strickland, 466 U.S. at 689; McFarland, 127 Wn.2d at 335. Although counsel asked the court to excuse the juror for cause, he may have had strategic reasons not to exercise a peremptory challenge. For example, counsel may well have believed that because of her boyfriend’s experience, the juror was much more likely to view accused sex offenders with compassion. Moreover, she repeatedly described herself as an open minded person who would do her best to give Ray a fair trial. Accordingly, Ray has not shown that counsel’s decision was other than strategic.
IX. Aggravating Factors
Finally, Ray argues that the aggravating factors should be stricken from the amended information on remand. He claims that under State v. Hughes, 154 Wn.2d 118, 110 P.3d 192 (2005), the trial court had no authority to submit aggravating factors to the jury. The State concedes that the allegations are a nullity under Hughes and states that it would not object to striking the factors in the event of a new trial, but it disagrees that there is any need for such action at this time.
Generally, a defendant may appeal a standard range sentence only if he can show a constitutional violation. Ray argues that he does have a constitutional argument under Hughes, citing State v. Bramme, 115 Wn. App. 844, 850, 64 P.3d 60 (2003). But in Bramme, the defendant received a standard range sentence for manufacture of a controlled substance and appealed the trial court’s decision that he was not eligible for an alternate form of sentencing based on the quantity of drugs involved. Bramme, 115 Wn. App. at 852-53. Here, Ray does not claim that the aggravating factors affected his standard range sentence. Accordingly, even if the sentence is appealable, Ray has shown no prejudice. The only suggestion of prejudice is his statement that it “is unknown what effect illegally imposed aggravating factors may have on him as he nears the end of his sentence and beyond.” Br. of Appellant at 43. This vague assertion fails to articulate a legal basis for relief.
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.
Quinn-Brintnall, C.J., and Penoyar, J., concur.