STATE v. ROACH, 35545-1-II (Wash.App. 7-24-2007)

No. 35545-1-II.The Court of Appeals of Washington, Division Two.
July 24, 2007.

Appeal from a judgment of the Superior Court for Pierce County, No. 04-1-05119-5, Brian M. Tollefson, J., entered February 10, 2006.

Affirmed by unpublished opinion per Bridgewater, J., concurred in by Van Deren, A.C.J., and Hunt, J.

BRIDGEWATER, J.

John Edward Roach appeals his conviction of second degree child assault. We affirm.

FACTS
John and Deborah Roach had a lengthy and acrimonious divorce and child custody battle. John[1] was the designated custodial parent of both of their sons, Z.R. and W.R. Z.R. had been living with his father for about one year and visited Deborah on weekends. Both children were enrolled in School Kids’ Clubhouse in Puyallup, Washington. At the time of the present incident, Z.R. was eight years old.

On August 11, 2004, Z.R. arrived at the day care center with bruises on his face. Shelle Silvas, the day care director, brought Z.R. into her office and asked him if he had any “owies.” 10 RP at 449. Z.R. said that he did and lifted his shirt to show bruises on his back and shoulders. Without Silvas asking how he got the bruises, Z.R. said “daddy did it with the keys.” 10 RP at 456.

Silvas telephoned Peggy Emory, CFO and co-owner of the day care to come and examine the bruising on Z.R. Emory testified that Z.R. had bruises on his lower jaw and shoulder that were “pretty bright” and “acute”. 13 RP at 864. When Emory asked Z.R. how the bruising occurred, he said that he lost his father’s keys and that when his father could not find the keys, he got mad, poured syrup in his hair, and then hit him with the keys. When Z.R. stated that his father hits him “lots,” the day care providers decided to call Child Protective Services (CPS). 13 RP at 868. Emory testified that Silvas and her husband each called CPS but that nobody came to investigate. When John came to pick up Z.R. and W.R. they were both released to him.

Deborah had scheduled visitations with Z.R. and W.R. on the second Saturday of every month. August 14, 2006, was her next scheduled visitation day. Near the end of the visitation, Deborah noticed bruises on Z.R’s hand and body. She then took Z.R. to Mary Bridge Children’s Hospital.

Deborah met with a hospital social worker and the police that night, and brought the boys back the following week to be interviewed at the Child Advocacy Center. During this interview, Z.R. first said that when he lost his father’s keys, his father hit him with an open fist, but then changed his answer to say a closed fist. Z.R. then said that his dad also had put flour and syrup on the top of his head, and then spat in his face.

At trial, the responding deputy testified that, upon arriving at Mary Bridge Children’s Hospital, he witnessed bruising to the left side of Z.R.’s face, left lower back, left shoulder, and hand. The court admitted several photographs documenting the extent and appearance of Z.R.’s injuries. The deputy asked Z.R. how he got the bruises, to which Z.R. responded that this father had beaten him. John was arrested later that night.

Z.R. testified at trial and said that his father got mad at him for losing his keys and then put flour and syrup in his hair, kicked him in the back and on his arms while he was on the floor, and that his dad made the black marks on his body. Z.R. did not remember talking to anyone at the day care about the incidents but he did remember talking to the social worker at the hospital.

Undeniably, Z.R. gave differing explanations of how he had been bruised. John’s defense was that Deborah was angry that she lost custody of Z.R. and that she was coaching Z.R. to make false allegations. At trial, John wanted to admit evidence that Deborah had previously made unfounded allegations that he had assaulted Z.R. on other occasions. Specifically, John sought to admit evidence concerning: (1) a 2002 hospital visit where a social worker indicated that Deborah appeared to be prompting Z.R. to name his father as the source of an injury; (2) Deborah’s call to the police in May 2004, which prompted the guardian ad litem (GAL) in their dissolution case to require a written note from her stating that she would not call the police if allowed visitation; and (3) a letter written from Sally Gray regarding Deborah’s claim that another boy in the day care had given Z.R. a black eye and Deborah’s efforts to document that injury by taking him to a fire station.

The trial court heard John’s offer of proof on all three issues. Deborah did not recall any events regarding John’s allegations, but denied ever trying to get the children to make false accusations against him. The trial court judge said that because Deborah had virtually no recollection about these events, he was not inclined to allow John to ask about it on cross-examination.

The State claims that, despite the trial court’s ruling, John was allowed to demonstrate Deborah’s bias and motive to lie in cross-examination when she acknowledged that she felt the GAL was “totally against [her].” 13 RP at 832. Also, the State notes that John asked several questions about coaching the children. But John disagrees, and in this appeal argues that the evidence the trial court ruled inadmissible was highly probative and crucial to his defense theory because it related to Deborah’s conduct and shows that Z.R.’s different accounts were a product of his mother’s coaching.

ANALYSIS I. Jury Instruction 7
John claims that the trial court erred in giving jury instruction 7, but John did not object to this jury instruction at trial. Nonetheless, we review this claim because “[a]n alleged instructional error in a jury instruction is of sufficient constitutional magnitude to be raised for the first time on appeal.” State v. Davis, 141 Wn.2d 798, 866, 10 P.3d 977(2000). We review a challenged jury instruction de novo. State v. Pirtle, 127 Wn.2d 628, 656, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026 (1996).

John argues that, because the court gave three definitions of assault in jury instruction 7,[2] it created an alternative means case. But our Supreme Court has fully resolved this matter, contrary to Roach’s argument, by its holding that definitional instructions do not create alternative means. State v. Smith, 159 Wn.2d 778, 790, 154 P.3d 873
(2007). John’s claim fails.

II. Confrontation Clause
John next asserts that the trial court committed a constitutional error by denying his Sixth Amendment right to present testimony in his own defense and confront and cross-examine the witnesses against him.

Both the United States and Washington Constitutions guarantee an accused the right to confront prosecution witnesses. U.S. Const. amend. VI; Washington Const. art. I, § 22. The right to cross-examination, however, is not absolute; its scope is within the trial court’s sound discretion and can be restricted to prevent harassment or annoyance to the witness, or to protect the witness’s personal safety. Alford v. United States, 282 U.S. 687, 693, 51 S. Ct. 218, 75 L. Ed. 624 (1931) Smith v. Illinois, 390 U.S. 129, 133-34, 88 S. Ct. 748, 19 L. Ed 2d 956
(1968) (White, J., concurring).

John is correct that an error prohibiting a defendant from full and effective cross-examination is an error of constitutional magnitude California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489
(1970); State v. York, 28 Wn. App. 33, 36-37, 621 P.2d 784 (1980). We review claims of manifest constitutional error de novo. Pirtle, 127 Wn.2d at 656-57; State v. Stanley, 120 Wn. App. 312, 314, 85 P.3d 395 (2004). ER 608(b) provides that, for purposes of attacking a witness’s credibility, specific instances of conduct may, in the court’s discretion, be asked on cross-examination if probative of truthfulness. ER 608(b); State v. Cochran, 102 Wn. App. 480, 486-87, 8 P.3d 313
(2000), review denied, 143 Wn.2d 1004 (2001).

A trial court may, in its discretion, preclude otherwise admissible evidence under ER 403 if the danger of unfair prejudice outweighs the evidence’s probative value. ER 403. We review such exercise of discretion for abuse of discretion. State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306, review denied, 108 Wn.2d 1033 (1987). Abuse occurs when the trial court’s discretion is “manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39 (1982), rev’d on other grounds, 99 Wn.2d 538 (1983).

But confrontation means more than being allowed to confront the witness physically. Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105 (1974). I Davis, a key prosecution witness was on probationary status as a juvenile delinquent. Defense counsel sought to argue at trial that the witness’s testimony was motivated by fear of possible probation revocation if he did not cooperate with the prosecution. The trial court barred any reference to the witness’s juvenile record, and the defendant was convicted. The United States Supreme Court held that the defendant’s confrontation rights had been violated: “We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.”Davis, 415 U.S. at 316. The court explained further: “The partiality of a witness is subject to exploration at trial, and is `always relevant as discrediting the witness and affecting the weight of his testimony’ and allowing the cross-examiner to test perception and memory.” Davis, 415 U.S. at 316 (quoting 3A John Wigmore, Evidence § 940, at 775 (Chadbourn rev. 1970)).

The State argues that John was allowed to explore Deborah’s bias and motive to lie in cross-examination and was also allowed to ask several questions that alluded to Deborah coaching the children. But the trial court limited what areas John could question to areas that were probative and crucial to his defense theory.

The trial court relied on State v. Young, 48 Wn. App. 406, 739 P.2d 1170 (1987). In Young, where a passenger had a habit of intentionally interfering with other drivers by taking the steering wheel, it was held that evidence of that person’s conduct was highly probative and crucial to the defense theory. Young, 48 Wn. App. at 413. In coming to our decision, we stated that when “[w]eighing the probative value of evidence under ER 403 against the dangers of confusion or prejudice, the general rule requires the balance be struck in favor of admissibility.” Young, 48 Wn. App. at 413 (citing United States v. Dennis, 625 F.2d 782 (8th Cir. 1980)).

Here, the trial court was correct when it stated that the analysis would have to be whether the offer is crucial and central to the valid defense. But after Deborah’s testimony during the offer of proof, the trial court held that John could not explore whether the mother prompted the children to say that John assaulted Z.R. because Deborah was unable to recall the specific events. The trial court erred in excluding this line of questioning.

John wanted to question Deborah about previous incidents where she tried to document allegations of abuse and prompted the children to accuse the father of abuse, but Deborah claimed she could not remember those events. After denying John’s request, John argued “that [because Deborah] remembers the incident, remembers going in there . . . [it is] admissible, and her denials or lack of memory [regarding specific incidents] go to her credibility.” 13 RP at 890. John was correct.

Evidence of a person’s conduct that is highly probative and crucial to the defendant’s defense theory should be admitted. See Young, 48 Wn. App. at 413. Moreover, the court should have allowed John to explore Deborah’s perception and memory, as they were relevant to her credibility. See Davis, 415 U.S. at 316. Ruling that a witness’s inability to remember made the evidence inadmissible thwarted the entire purpose of cross-examination and removed the fact-finding function from the jury.

But the State maintains that any error in limiting John’s cross-examination of Deborah is harmless. Confrontation clause violations are subject to harmless error analysis. See State v. Shafer, 156 Wn.2d 381, 395, 128 P.3d 87, cert. denied, 127 S. Ct. 553 (2006); see also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674
(1986).

“It is well established that constitutional errors, including violations of a defendant’s rights under the confrontation clause, may be so insignificant as to be harmless.” State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986) (citin Harrington v. California, 395 U.S. 250, 251-52, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969); Chapman v. California, 386 U.S. 18, 21, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)). A constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Constitutional error is presumed to be prejudicial and the State bears the burden of proving that the error was harmless State v. Stephens, 93 Wn.2d 186, 190-91, 607 P.2d 304 (1980). Guloy, 104 Wn.2d at 425. See also State v. Damon, 144 Wn.2d 686, 25 P.3d 418
(2001). We use the “overwhelming untainted evidence” test in our harmless error analysis. Guloy, 104 Wn.2d at 425-26. Under the “overwhelming untainted evidence” test, we look only to the untainted evidence to determine whether the untainted evidence is so overwhelming that it “necessarily leads to a finding of guilt.” Guloy, 104 Wn.2d at 426
(citing Parker v. Randolph, 442 U.S. 62, 70-71, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979); Brown v. United States, 411 U.S. 223, 231, 93 S. Ct. 1565, 36 L. Ed. 2d 208 (1973)); see also State v. Davis, 154 Wn.2d 291, 305, 111 P.3d 844 (2005), aff’d, 126 S. Ct. 2266 (2006).

John has failed to show that, had the court allowed the questioning, the trial outcome would have differed. In fact, John has proven the opposite. Deborah did testify to an extensive line of questioning from both sides, most of which she responded with either I don’t remember or I don’t recall. “[W]here a case stands or falls on the jury’s belief or disbelief of essentially one witness, that witness’ credibility or motive must be subject to close scrutiny.” State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980); see also State v. Darden, 145 Wn.2d 612, 41 P.3d 1189 (2002); State v. York, 28 Wn. App. 33, 621 P.2d 784
(1980). But the case did not stand or fall on Deborah’s memory.

We note that John had an opportunity to question Deborah and the jury was able to weigh the evidence notwithstanding Deborah’s failed memory. She denied coaching the children. It is the jury’s province to decide the credibility of witnesses and the weight to be given to the evidence. We will not substitute our judgment for the jury’s so long as there was evidence, which, if believed, supports the verdict. State v. O’Connell, 83 Wn.2d 797, 839, 523 P.2d 872 (1974) (citing Burke v. Pepsi-Cola Bottling Co., 64 Wn.2d 244, 391 P.2d 194 (1964)). Here, John adduced from the GAL that because of his acrimonious divorce proceedings and because Deborah had a “history of influencing the children,” he was skeptical about the charges. 15 RP at 1139. Moreover, the GAL testified that she had a “[b]ad” reputation in the community for truthfulness and veracity. 14 RP at 1095. Thus, even though John should have been allowed to reveal that Deborah would testify that she had no memory of prior events, he was able to discredit her testimony from an unbiased source.

Under the circumstances, the trial court’s erroneous evidentiary ruling was harmless. Z.R. had serious bruising that was severe enough to merit a CPS report. The evidence was that he had no contact with his mother for nearly one month before the bruising was revealed. Z.R. made the initial allegation that he was struck by his father before visiting his mother and before being placed in her custody. Therefore, there is overwhelming evidence that supports the verdict independent of whether Deborah prompted Z.R. to fabricate his story.

John independently raises two other confrontation issues in a Statement of Additional Grounds (SAG): (1) whether his Sixth Amendment right to cross-examine was violated and (2) whether the court erred in limiting the GAL’s proposed testimony by not allowing any testimony about Z.R.’s reputation among adults in the community. We discussed the first issue above and it merits no further discussion.

John argues that the GAL should have been allowed to testify about Z.R.’s character for truthfulness because he had full contact with both day care centers and full access to all his medical records.

We review the trial court’s admission of evidence for abuse of discretion. Pirtle, 127 Wn.2d at 648. “A trial court abuses its discretion when its decision is manifestly unreasonable or based upon untenable grounds.” State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426 (1997) (quoting Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994)), review denied, 133 Wn.2d 1019
(1997). The appellant bears the burden of proving abuse of discretion Hentz, 32 Wn. App. at 190. We may affirm on any ground the record adequately supports. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795
(2004).

Here, John fails to prove an abuse of discretion. We already stated above that a trial court may, in its discretion, preclude otherwise admissible evidence under ER 403 if the danger of unfair prejudice outweighs the evidence’s probative value. ER 403. We are unable to find that the trial court’s decision to limit the GAL’s testimony about Z.R. was manifestly unreasonable or based on untenable grounds. See Perrett, 86 Wn. App. at 319.

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.

We concur:

Hunt, J., Van Deren, A.C.J.