STATE v. MOSHER, 20689-1-III (Wash.App. 11-19-2002)

No. 20689-1-IIIThe Court of Appeals of Washington, Division Three. Panel Nine.
Filed: November 19, 2002 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County, No. 018011479, Hon. Joseph Valente, October 31, 2001, Judgment or order under review.

Counsel for Appellant(s), William D. Edelblute, Attorney At Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206.

Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.

Andrew J. Metts III, Deputy Prosecuting Attorney, 1100 W Mallon Ave, Spokane, WA 99260-0270.

SWEENEY, J.

This is an appeal from a disposition order in juvenile court for fourth degree assault with sexual motivation. The State called a witness solely for the purpose of having her deny telling police that she saw Robert Mosher assault the victim. The officer then testified that the witness told him that Mr. Mosher assaulted the victim. This was error but harmless error since other witnesses testified that they saw Mr. Mosher assault the victim.

Mr. Mosher also complains that the court drew adverse and improper inferences from his defense. The record does not support this. And so we affirm the disposition order.

FACTS
Robert Mosher and Nicole Hand were in the same gym class at Rogers High School. Between September and December 2000, Mr. Mosher repeatedly manhandled Ms. Hand, grabbing her breasts and buttocks. Ms. Hand clearly communicated to Mr. Mosher that his conduct was offensive. But he continued to assault her. Ms. Hand reported the matter during the school’s sexual harassment week. The State charged and tried Mr. Mosher in juvenile court with fourth degree assault with sexual motivation. Another student, Ashley Bacon, told investigating officer, Paul Corrick, that she had seen Mr. Mosher grabbing Ms. Hand and squeezing her breasts.

When called as a witness, Ms. Bacon denied having made the statements. The State called Officer Corrick and elicited testimony of what Ms. Bacon had told him. The defense objected to the testimony, on both substantive and impeachment grounds. The court admitted the evidence, ruling that hearsay evidence of a prior inconsistent statement was admissible for impeachment. Several students testified to having witnessed these incidents. The defense presented the testimony of several boys who testified that Ms. Hand encouraged and frequently initiated the contacts. The court believed Ms. Hand and disbelieved Mr. Mosher. In its findings, the court rejected the consent defense theory in explicit findings.

The court states, “The Defense theory of consent is not unfamiliar to the court.” Clerk’s Papers (CP) at 16. This is asterisked to a handwritten note which says, “The defendant called his close friends to testify that the victim encouraged this contact. The strategy appeared to be to blame the victim.” CP at 16. Mr. Mosher was found guilty of fourth degree assault with sexual motivation and sentenced to five days of confinement. Mr. Mosher challenges the admission of Officer Corrick’s hearsay evidence of Ms. Bacon’s statement. He also assigns error to one of the court’s findings, contending he was penalized for asserting the consent defense.

DISCUSSION
Testimony of Prior Inconsistent Statement

A prior out-of-court statement is not hearsay provided (a) the declarant testifies at the hearing and is subject to cross-examination; (b) the prior statement is inconsistent with the declarant’s testimony; and (c) the prior statement was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition. ER 801(d)(1). A statement satisfying this rule is admissible as substantive evidence. State v. Smith, 97 Wn.2d 856, 857, 651 P.2d 207
(1982). Ms. Bacon’s statement to Officer Corrick was not given under oath. So, clearly, it is not admissible under ER 801(d)(1) as substantive evidence. And neither is the statement admissible for impeachment. Ms. Bacon was the State’s witness. The State knew beforehand that she would be a hostile witness and would not give the evidence the State wanted. The prosecutor asked Ms. Bacon if she had told Officer Corrick she had witnessed the abuse. She said, “No.” Report of Proceedings at 53. The State then put her statements to Officer Corrick in the record as extrinsic evidence of a prior inconsistent statement. This violates ER 607. ER 607 permits any party to attack the credibility of its own witness. A party may not, however, call a witness for the primary purpose of eliciting a denial in order to impeach the witness by bringing in otherwise inadmissible hearsay. State v. Lavaris, 106 Wn.2d 340, 345, 721 P.2d 515 (1986). If the witness testifies to an inconsistent story, the prior statement is admissible to show that the witness is unreliable. State v. Allen S., 98 Wn. App. 452, 463, 989 P.2d 1222
(1999); State v. Hancock, 109 Wn.2d 760, 763, 748 P.2d 611 (1988). But if the witness refuses to testify about the incident at all, there is no testimony to impeach. Kuhn v. United States, 24 F.2d 910, 913 (9th Cir. 1928) (where witness merely fails to render assistance expected, no basis for impeachment under the rule). Here, the State knew Ms. Bacon would refuse to testify. The prosecutor did not even ask her whether she witnessed inappropriate conduct. Instead, the prosecutor went straight to the question of whether Ms. Bacon had told Officer Corrick she had seen things. Ms. Bacon said she did not. The State then called Officer Corrick to refute her denial and to recite the substance of what she had told him.

The State misconstrues ER 607, and the distinction between substantive and impeachment evidence. If a witness lies on the stand about a particular point, ER 607 allows the State to show that the witness lied. If, instead, the witness refuses to say anything about the point, Lavaris says that ER 607 does not provide an alternative method for putting the substance of the lost testimony before the finder of fact. Lavaris, 106 Wn.2d at 344-45. Harmless Error. But an evidentiary error is reversible only if, within reasonable probabilities, the error materially affected the outcome of the trial. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). Mr. Mosher does not, and indeed cannot, contend that this error affected the outcome. The State presented the testimony of numerous other witnesses to the same effect. Inferences Drawn from Consent Defense

Judges may not comment on the evidence. WASH. CONST. art. IV, § 16. A judge comments on the evidence if the court’s attitude toward the merits of the case is “reasonably inferable from the nature or manner of the court’s statements.” State v. Carothers, 84 Wn.2d 256, 267, 525 P.2d 731
(1974). The purpose of this constitutional prohibition, however, is to prevent the jury from being influenced by the court’s opinion of the evidence. State v. Elmore, 139 Wn.2d 250, 275, 985 P.2d 289 (1999) (citing State v. Lord, 117 Wn.2d 829, 862, 822 P.2d 177 (1991)). This case was tried without a jury. Mr. Mosher does not, therefore, characterize the commissioner’s remarks as a comment on the evidence. Instead, Mr. Mosher contends that the commissioner’s comments reveal more than a low opinion of the persuasiveness of the evidence. He contends that the court, offended by his defense strategy, penalized him for the ungentlemanly conduct of blaming the victim.

The juvenile court is required to enter written findings stating the ultimate facts as to each element of the crime and the evidence upon which the court relied in reaching its decision. JuCR 7.11(d) State v. Lopez, 105 Wn. App. 688, 693, 20 P.3d 978, review denied, 144 Wn.2d 1016 (2001).

The juvenile court’s unchallenged findings are verities on appeal State v. Ware, 111 Wn. App. 738, 742, 46 P.3d 280 (2002). Here, the commissioner’s findings show that he believed Ms. Hand and did not believe Mr. Mosher or Mr. Mosher’s witnesses. The court states twice that its decision on credibility is based upon its observation of the demeanor of the witnesses. The court finds the State met its burden of proving the elements of the charge beyond a reasonable doubt. Mr. Mosher does not assign error to the findings that he touched Ms. Hand in a manner that was offensive to her, that she communicated clearly to him that she found the touching offensive, or that he touched her for his own sexual gratification.

The only finding Mr. Mosher assigns error to is that the court was not unfamiliar with the consent defense. The only relevant findings, however, are those that reflect the court’s decision on the controverted issues of fact in the case. Mr. Mosher concedes the court’s familiarity with the consent defense is not material.

The disposition order is affirmed.

A majority of the panel has determined that 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.

KATO and KURTZ, JJ., concur.