No. 20725-1-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: February 4, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Walla Walla County Docket No: 01-1-00061-3 Judgment or order under review Date filed: 11/13/2001
Counsel for Appellant(s), William D. Edelblute, Attorney at Law, 200 N Mullan Rd Ste 119, Spokane, WA 99206-6827.
Counsel for Respondent(s), Michelle Marie Mulhern, Walla Walla Co Pros Office, 240 W Alder St. Ste 201, Walla Walla, WA 99362-2807.
SCHULTHEIS, J.
Roberto Sereno was charged with one count of first degree child molestation and one count of first degree rape of a child. At trial, the State was allowed over defense objection to offer rebuttal testimony that repeated the witness’s testimony on direct. The jury acquitted Mr. Sereno of the molestation charge but convicted him of first degree rape of a child. On appeal, he contends the improper rebuttal testimony prejudiced his defense. We disagree, and affirm.
Facts
In February 2001, Walla Walla police detective Jeff Meyer interviewed two minor girls who accused their uncle, Mr. Sereno, of various sexual acts against them. Detective Meyer and Officer Miguel Sanchez contacted Mr. Sereno later that day at his residence. Because Mr. Sereno was sitting in his kitchen with his family, the officers asked him to accompany them outside, where they informed him in Spanish that he was being arrested for child molestation and child rape of his nieces, M.R. and F.R.
Mr. Sereno was transported to the county jail, where Officer Sanchez read him his constitutional rights in Spanish. After Mr. Sereno waived his rights, Officer Sanchez then acted as interpreter during an interview conducted by Detective Meyer. In the course of the interview, Mr. Sereno made inculpatory statements and wrote a letter of apology to the victims’ family at Detective Meyer’s suggestion.
In August 2001, Mr. Sereno was charged by amended information with one count of first degree child molestation of M.R. and one count of first degree rape of a child involving F.R. At trial, Officer Sanchez testified regarding the initial arrest of Mr. Sereno. On cross-examination, defense counsel asked if Officer Sanchez, while arresting Mr. Sereno in a public place, had stated `in not a very soft voice’ that Mr. Sereno was a sex offender. Report of Proceedings (RP) at 50. Officer Sanchez denied this, explained that he and Detective Meyer took Mr. Sereno outside to arrest him away from his family, and treated Mr. Sereno with utmost dignity.
Detective Meyer testified he told Mr. Sereno that, due to the girls’ ages, what Mr. Sereno had done was wrong. According to Detective Meyer, Mr. Sereno then stated, `it happened.’ RP at 72. When asked why he had done it, Mr. Sereno stated that he `felt this desperation inside.’ RP at 73. He admitted putting his penis in F.R.’s anus, but denied ever touching M.R. Both F.R. and M.R. testified regarding various acts committed on them by Mr. Sereno.
When Mr. Sereno took the stand, he testified that Officer Sanchez loudly declared `I want everybody to notice that I’m arresting him because of a rape’ when Mr. Sereno was handcuffed. RP at 271. Later, he added, Officer Sanchez said, `I want them to know that you’re a child rapist of girls.’ RP at 272. Mr. Sereno denied making incriminating statements to the officers. He agreed that what he actually said was `if the girls say something happened, well, then that’s what happened, show me your proof.’ RP at 276. He denied touching either of the girls in a sexual manner.
Following Mr. Sereno’s testimony, the State called Officer Sanchez for rebuttal. The officer was first asked if Mr. Sereno was correct in stating that Officer Sanchez was a bit aggressive or abrupt with him. The officer answered no. Defense counsel objected that this was not proper rebuttal testimony because Officer Sanchez had already denied this statement on cross-examination. Finding that the difference was that Mr. Sereno had not testified before now, the court overruled the objection. Officer Sanchez was then asked to describe Mr. Sereno’s demeanor when he stated `it happened.’ Once again, defense counsel objected, asserting that he had not asked Mr. Sereno anything about the `it happened’ statement during direct examination. The trial court disagreed and overruled. Officer Sanchez then testified that Mr. Sereno had looked him `straight in the eyes’ and said `it happened.’ RP at 285.
The jury convicted Mr. Sereno of first degree rape of a child, but acquitted him on the other count. He received a standard range sentence of 100 months.
Discussion
On appeal, Mr. Sereno contends the trial court erred in allowing Officer Sanchez to testify on rebuttal. He argues that Officer Sanchez’s testimony was merely cumulative and repetitive to the point of prejudice.
Rebuttal evidence generally is admitted to answer new matters raised by the defense. State v. White, 74 Wn.2d 386, 394, 444 P.2d 661 (1968); see also State v. Swan, 114 Wn.2d 613, 652-53, 790 P.2d 610 (1990). It is not simply a reiteration of the evidence in chief. White, 74 Wn.2d at 394-95. The reason rebuttal evidence is circumscribed is to prevent the State from withholding substantial evidence in order to present this evidence cumulatively at the end of the defendant’s case. Id. at 395. Ascertaining when rebuttal evidence is in reply to new matters may be difficult, and often genuine rebuttal evidence will overlap the evidence in chief. Id. Consequently, the admissibility of evidence on rebuttal is subject to the discretion of the trial court and will be reversed only on a showing of manifest abuse of discretion. Id.
Mr. Sereno challenges two statements in Officer Sanchez’s rebuttal testimony. He contends the testimony regarding the aggressiveness of the officers during his arrest and regarding Mr. Sereno’s demeanor when he stated `it happened’ was unfairly repetitious. In each case, however, Officer Sanchez’s testimony rebutted fairly new matters raised by the defense.
During Mr. Sereno’s direct examination, he described two incidents when Officer Sanchez allegedly accused him loudly in public of being a rapist. On rebuttal, the prosecutor asked Officer Sanchez if it was correct that he had been a bit aggressive or abrupt with Mr. Sereno. Defense counsel objected because on cross-examination of Officer Sanchez earlier, the officer had denied stating `in a not very soft voice’ that Mr. Sereno was a sex offender. RP at 50. Although Officer Sanchez’s rebuttal testimony regarding his conduct during the arrest overlapped his statement on cross-examination, the rebuttal was a response to specific statements made by Mr. Sereno and attributed to Officer Sanchez. The officer who supposedly made the public statements was properly allowed to rebut them. Accordingly, the trial court did not abuse its discretion in allowing this rebuttal testimony.
Detective Meyer was the witness who originally testified that Mr. Sereno stated `it happened.’ RP at 72. On direct examination, Mr. Sereno attempted to explain this statement by indicating that he challenged the police to prove the victims’ accusations: `that’s what happened, show me your proof.’ RP at 276. When Officer Sanchez was asked on rebuttal to describe Mr. Sereno’s demeanor when he stated `it happened,’ defense counsel objected that the statement had not been discussed on direct examination of Mr. Sereno. RP at 285. Not only was the statement discussed, but Mr. Sereno attempted to present it in a light that was less incriminating. Here again, the officer’s testimony overlapped earlier testimony, but responded to a new interpretation of the statement allegedly made by Mr. Sereno. Officer Sanchez did not merely repeat the statement, but described the manner in which it was delivered. Mr. Sereno fails to show that the trial court’s decision to allow this rebuttal testimony was a manifest abuse of discretion.
Finally, any error in allowing Officer Sanchez’s rebuttal testimony was not prejudicial. Admission of improper rebuttal testimony is prejudicial only if it affects the outcome of the trial. State v. Burns, 53 Wn. App. 849, 851, 770 P.2d 1054 (1989), aff’d, 114 Wn.2d 314, 788 P.2d 531 (1990); State v. Allen, 50 Wn. App. 412, 423, 749 P.2d 702
(1988). In this case, the testimony of the victims provided more than sufficient evidence to convict Mr. Sereno. Evidently Mr. Sereno’s all-inclusive statement that `it happened’ was not a clear enough admission of guilt for the jury to find him guilty of sexual misconduct with M.R. On balance, even if the rebuttal testimony was to some degree repetitive, it did not affect the outcome of the trial.
Affirmed.
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.
BROWN, C.J. and KURTZ, J., concur.