No. 25101-9-II.The Court of Appeals of Washington, Division Two.
Filed: June 22, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County, No. 99-1-00104-2, Hon. William J. Kamps, September 24, 1999, Judgment or order under review.
Counsel for Appellant(s), John L. Cross, Ronald D. Ness Associates, 420 Cline Ave, Pt Orchard, WA 98366.
Counsel for Respondent(s), Randall A. Sutton, Kitsap Co Dep Pros Atty, M/S 35, 614 Division St, Port Orchard, WA 98366-4681.
HOUGHTON, J.
The State alleged that James Edward Townson served alcohol to his minor grandson and his grandson’s minor friend while playing a game of drink or dare. Many of the dares involved nudity and oral sex.
A jury found Townson guilty of communicating with a minor for immoral purposes and with third degree rape of a child. Before sentencing, Townson moved for a new trial on the basis of newly discovered evidence of a conspiracy between the minor and two other minors to send Townson to prison in exchange for methamphetamine. The trial court denied the motion. Finding no abuse of discretion, we affirm.
Facts
The State presented three witnesses in its case in chief. The first was T.K., who testified that on November 15, 1997, he spent the evening with his friend, D.T., at Townson’s home. Townson is D.T.’s grandfather. After returning from a visit to Tacoma General Hospital to visit D.T.’s new brother, they spent the night with Townson. Townson’s wife, Ardith, was in Bremerton visiting her mother.
Soon after they arrived, Townson closed the living room curtains and he and D.T. made drinks of vodka and orange juice for the three of them. Soon they were playing a game of drink or dare in which, depending upon the card drawn, the drawer must either drink or make a dare of another player. T.K. testified to the following dares:
Townson dared D.T. to dance in his birthday suit. D.T. did so.
D.T. dared Townson to play the rest of the game naked. Townson did so.
Townson dared D.T. to play the rest of the game naked. D.T. did so.
D.T. dared T.K. to play the rest of the game naked. T.K. did so.
Townson dared T.K. to `shake all the doorknobs.’[1]
T.K. did so.
Report of Proceedings at 56.
Townson dared D.T. to `knob him twice.’[2] D.T. did so. Report of Proceedings at 56.
D.T. dared Townson to knob him twice. Townson did so.
Townson dared D.T. and T.K. to knob him twice. They did so.
D.T. dared Townson and T.K. to knob him twice. They did so.
Townson then dared D.T. and T.K. to watch a pornographic movie and declared, `the first to pop a woody would have to jack-off in front of him.’
Report of Proceedings at 59. None did and they all went to bed. RP 60.
The next morning, Townson told T.K., `Don’t tell anyone about what happened.’ Report of Proceedings at 60. In October 1998, T.K. told Cheryl Townson that he had drank alcohol and watched pornographic movies with Townson. He did not disclose the nudity or the oral sex. He made a similar disclosure to a police officer investigating the allegations against Townson. He made his first disclosures regarding the nudity and oral sex to a deputy prosecuting attorney in April 1999.
The other two witnesses, T.D. and D.A., testified to having similar experiences with Townson and D.T.[3] On separate occasions, each boy stayed overnight with D.T. at Townson’s home, Townson served them alcohol, they played a game of drink or dare, and the dares involved nudity. T.D. testified that he quit playing the game after Townson dared him to suck all the doorknobs in the house and dared him to play with his pants down and run around the house with his pants around his ankles. D.A. testified that the game escalated from nudity to oral sex and that all three of them sucked each other’s penises. After T.K. made his disclosures to Cheryl Townson, she asked T.D. and D.A. if they had similar experiences, both denied anything sexual took place but related that they had watched pornographic movies and drank alcohol with Townson. Both denied having a conversation with Matt Walker, a friend of D.T.’s, about making up a story about Townson in exchange for methamphetamine.
In his defense, Townson presented Wanda Grogan, who testified that she house sat for the Townsons from September 5, 1997 to November 15, 1997. She testified that on Saturday November 15, 1997, she slept on the Townsons’ couch and that neither D.T. nor T.K. were there.
Townson’s wife, Ardith, also testified. She explained that she, Townson, and D.T. had been on vacation in southern Oregon until November 15, 1997. She recalled taking D.T. home early that evening so that he could go to the hospital to see his new baby brother. She said that Grogan spent the night but that D.T. and T.K. did not.
D.T. testified that he was friends with T.K., T.D., and D.A. He recalled coming back from vacation with his grandparents and going to the hospital with his mother and stepfather and T.K. He explained that they got home late and stayed at his house, not his grandfather’s. During cross-examination, he denied telling his girlfriend’s mother that Townson served he and his friends alcohol, that Townson hurt him, and that Townson sexually molested him.
Matt Walker testified to knowing D.A. since junior high school and having shared a cell in juvenile hall. He recalled a conversation he had about Townson with D.A. in which D.A. offered him `dope to go and testify that I was molested by some old man.’ Report of Proceedings at 144-45. A few days before Townson’s trial, Walker realized while talking with D.T. that the old man was Townson.
Townson testified that he, Ardith, and D.T., were on vacation from September 5, 1997 to November 15, 1997. He recalled Ardith taking D.T. home so D.T. could go visit his brother. He testified that Grogan spent the night, that T.K. did not and never had spent the night but that T.D. and D.A. had spent a single night there.
D.T.’s mother and stepfather testified that D.T. spent the night of November 15, 1997 at home and that T.K. also spent the night.
The State presented one rebuttal witness, Celeste Gill, who testified that D.T. had disclosed that Townson had served him alcohol and sexually molested him.
The jury found Townson guilty of both charges and, prior to sentencing, Townson moved for a new trial. The motion claimed newly discovered evidence disclosed a conspiracy between T.K., D.A., and T.D. to send Townson to prison in exchange for methamphetamine. The motion relied on two affidavits. The first, from Rhiannon Yancey, provided:
In September 1997, I was at a party held at Cheryl and Earl Townson’s home at the Martel Mobile Manor. Present at the party were {T.K.}, {D.A.}, {T.D.}, and several other people. We were all drinking and also doing Methamphetamine. At one point, Dan Schreiber and myself were talking with {D.A.} and {T.D.} {T.K.} walked over to where we were and {D.A.} told the rest of us to `hold on’ because he had to talk {to} {T.K.} for a minute. {D.A.} turned around to talk to him and I watched him bag up some Meth. for {T.K.} while telling him that this is what he would get if he were to help them set up some old guy. At the time, I did not know who the `old guy’ was.
I have just completed a six-month commitment in the Kitsap County Jail. A few days after I was released, I was talking to Dan Schreiber and he told me that Mr. Townson was in jail because of testimony given at trial by {T.K.}, {D.A.}, and {T.D.} I was able to put the pieces together and realized the `old guy’ they were talking about setting up was Mr. Townson.
Prior to this contact with Dan Schreiber, I was not aware that Mr. Townson had been charged with any offenses. I had only met Mr. Townson on two or three occasions in the past years and was not very familiar with him.
Prior to my recent incarceration, I admittedly used Methamphetamine on a frequent basis. I have done drugs on several occasions with all three of the witnesses, {T.K.}, {D.A.}, and {T.D.}
Clerk’s Papers at 159-60. The second affidavit, from Dan Schreiber, provided:
I was released from the Kitsap County jail after a commitment for District Court and Superior Court probation violations on August 13, 1999. Upon my release, I went to live with Nancy and Jamie Townson. There I learned that James `Ed’ Townson had been convicted of a felony following a trial at which {T.K.}, {D.A.}, and {T.D.} were witnesses. Prior to this time, I was unaware that Mr. Townson was facing any criminal charges.
When I heard that testimony was given by {T.K.}, {D.A.}, and {T.D.}, I remembered a party that I was at in September of 1998 where we were all present{.} The party took place at the Martel Mobile Manor and I believe it was at Cheryl Townson’s residence. Rhiannon Yancey was also at the party with me. {T.K.} was not at the party yet when we arrived. At one point during that evening, Rhiannon and I were sitting next to {D.A.} and {T.D.} and overheard the two of them talking about setting some guy up to get him busted. A little later, {T.K.} showed up. {D.A.} and {T.K.} spoke together and I watched {D.A.} give {T.K.} a baggie of methamphetamine. {D.A.} told {T.K.} something like, `That’s what I’ll give you and I’ll give you something else later if you help me set this guy up.’ I recognized the baggie contained methamphetamine because I have been a meth user. I have also seen all three, {T.D.}, {D.A.}, and {T.K.} use methamphetamine in the past. At the time I heard this conversation, I did not know who they were talking about, but it has become obvious to me now that they were talking about Mr. Townson.
Clerk’s Papers at 169-70. In opposing the motion for a new trial, the State presented extensive criminal histories for both Yancey and Schreiber.
The trial court denied the motion, finding that the proffered affidavits did not satisfy three of the five criteria for newly discovered evidence:
failure to show the `evidence could not have been discovered before the trial by the exercise of reasonable diligence{;}’ `the proffered testimony is essentially being offered only for purposes of impeachment of witnesses other than the victim{;}’ and `it is not credible, reliable, trustworthy, or cogent, making it unlikely that a jury would believe the testimony and decide the outcome of the trial differently.’
Clerk’s Papers at 205. Townson appeals.
Analysis
Townson raises a single issue on appeal. He claims the trial court abused its discretion in denying his motion for a new trial because it failed to view the relevance and effectiveness of the new evidence in light of the evidence presented at trial.
CrR 7.6(a)(3) defines as grounds for a new trial `{n}ewly discovered evidence material for the defendant, which he could not have discovered with reasonable diligence and produced at the trial{.}’ It must affirmatively appear that a substantial right of the defendant was materially affected.
To obtain a new trial based upon newly discovered evidence, a defendant must prove that the evidence: (1) will probably change the result of the trial; (2) was discovered after the trial; (3) could not have been discovered before trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. A new trial may be denied when any one of these factors is absent. State v. Macon, 128 Wn.2d 784, 803-04, 911 P.2d 1004 (1996) (citing State v. Swan, 114 Wn.2d 613, 641-42, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046
(1991); State v. Williams, 96 Wn.2d 215, 223, 634 P.2d 868 (1981)).
We agree with the trial court that Townson fails to meet three of the criteria required for newly discovered evidence. First, Townson fails to show that it would probably change the outcome of the trial. T.K., D.A., and T.D. all admitted under oath to engaging in inappropriate sexual behavior. Their testimonies of what occurred at Townson’s were strikingly similar in detail. Gill’s testimony, at least partially, corroborated their testimonies. Both affiants have extensive criminal records, including crimes of dishonesty, both admitted using methamphetamine and being under the influence of methamphetamine the night of the party, neither knew more than what they overheard, neither knew that the `old man’ was Townson until they spoke with D.T. after the trial, and neither had any facts other than the conversation they overheard to support their claimed conspiracy. Townson fails to explain why the jury would believe these new witnesses, when it clearly did not believe the testimony of the much more credible witnesses he did present.
Second, Townson fails to show that this evidence could not have been discovered with the exercise of due diligence. Part of Townson’s defense was that the boys set up Townson in exchange for methamphetamine. He cross-examined each witness about that possibility and presented testimony from Matt Walker that D.A. had asked him to testify in exchange for methamphetamine. Thus, Townson was aware of the defense before trial, presented evidence to support the defense, and failed to show what efforts, if any, he put forth before trial to find additional witnesses to the conspiracy.
Third, we agree with Townson that the evidence was more than merely impeaching. In addition to impeaching T.K., D.A., and T.D., it corroborated Walker’s testimony. But because, as the trial court found, it was incredulous, untrustworthy, unreliable, and incongruent, it would have weakly, not strongly as Townson asserts, corroborated Walker’s testimony.
In essence the evidence would only serve to impeach.
Relying on State v. Savaria, 82 Wn. App. 832, 919 P.2d 1263 (1996), and United States v. Davis, 960 F.2d 820 (9th Cir.), cert. denied, 506 U.S. 873 (1992), Townson argues that he does not need to satisfy the five new evidence criteria if it is impeachment testimony that undermines the State’s entire case. While we doubt that Savaria so holds, we will, for purposes of this argument, assume it does.[4]
Both Savaria and Davis hold that discovery of impeachment evidence may be grounds for a new trial in the rare instance where the State’s case rests entirely on a single uncorroborated witness who is discovered after trial to be unbelievable. See Savaria, 82 Wn. App. at 838; Davis, 960 F.2d at 825. The courts held that where the impeaching evidence so devastates the witness’ uncorroborated testimony as to render it totally incredible, the evidence becomes critical rather than `merely impeaching.’ See Savaria, 82 Wn. App. at 838; Davis, 960 F.2d at 825.
In Savaria, the State convicted Savaria of felony harassment and intimidating a witness. Savaria, 82 Wn. App. at 836. The impeaching evidence Savaria sought to admit was a newly discovered telephone record that directly contradicted the victim’s claim that she made a critical call. Savaria, 82 Wn. App. at 838. The evidence, if believed, directly contradicted the only evidence supporting a required element of the crime.
Similarly in Davis, the court concluded that `{i}f newly-discovered evidence establishes that a defendant in a narcotics case has been convicted solely on the uncorroborated testimony of a crooked cop involved in stealing drug money, the `interest of justice’ would support a new trial.’ Davis, 960 F.2d at 825. The court found that the officer’s unlawful conduct was so directly intertwined with the charge underlying the defendant’s conviction that the impeaching evidence rendered the officer’s testimony totally incredible.
But Savaria and Davis are easily distinguished. Here, the State’s case did not rest on the testimony a single uncorroborated witness and, because the new evidence was incredible, it would have done little to undermine T.K.’s testimony.
The trial court did not abuse its discretion in denying Townson’s motion for a new trial. 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.
WE CONCUR: MORGAN, J., ARMSTRONG, C.J.