STATE v. WATSON, 28096-5-II (Wash.App. 7-15-2003)

No. 28096-5-IIThe Court of Appeals of Washington, Division Two.
Filed: July 15, 2003 DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Lewis County Docket No: 01-8-00126-4 Judgment or order under review Date filed: 11/21/2001

Counsel for Appellant(s), Nelson Edward Hunt, Mano McKerricher Paroutaud Hunt, 20 S.W. 12th St, P.O. Box 1123, Chehalis, WA 98532-0169.

Counsel for Respondent(s), Terri Janine Gailfus, Attorney at Law, Msc Add01, 360 NW North St, Chehalis, WA 98532-1925.

QUINN-BRINTNALL, A.C.J.

T.E.W., a juvenile, appeals his conviction of first degree rape of a child, challenging the sufficiency of the evidence and the admissibility of various testimony and statements, including his confession that he gave after his father disciplined him. Although we agree that the juvenile appellant’s confession to his father was coerced and entitled to little weight, other voluntary admissions and untainted evidence support the conviction. Thus, we affirm.

FACTS
On the evening of December 25, 2000, four children of T.E.W.’s family went into the hot tub. The children were the appellant, T.E.W. (age 14); the victim, T.W. (age 11); their stepsister, G. (age 11 or 12); and their nephew, C.A. (age 11 or 12). According to G., the four were playing `truth-or-dare’ and T.E.W. dared T.W. to perform oral sex on him. I Report of Proceedings (RP) at 27-28. T.W. did so. Then, T.W. dared T.E.W. to do the same to him, and he did so.

Specifically, G. testified that T.E.W. `went over to [T.W.]’s spot [in the hot tub] and sucked his penis.’ I RP at 31. The bubbles in the hot tub were off and there was a light both in the hot tub and outside the sliding glass door to the house. G. stated that she saw T.W.’s penis, that T.E.W. put his head under water, that he put his mouth on T.W.’s penis, and that once his mouth was on T.W.’s penis, T.E.W.’s head `kind of bobbed.’ I RP at 32. When T.E.W. moved away, T.W’s penis was erect.

G. testified that she felt badly about the incident, so about two days later she told her mother what had happened. Her mother then told G.’s stepfather (T.E.W.’s father), and the parents confronted T.E.W. and his brother. T.E.W.’s father first asked T.W. what had happened that night; T.E.W. had been sent to his room. When T.W. was reluctant to explain, the father stated, `If you don’t talk you’re gonna get a swat.’ II RP at 225. The father then `swatted’ T.W. with a belt. T.W. ultimately told his parents that he and T.E.W. had engaged in many sexual acts over the years.

The parents then called T.E.W. into the living room and asked him what happened two nights before. At first T.E.W. would not say anything, so his father gave him two swats with the belt `to get [his] mind going.’ II RP at 170. T.E.W. admitted to oral sex that night, as well as other various incidents. When T.E.W. refused to admit that he and T.W. had ever had sex in the living room, his father hit him again with the belt. T.E.W.’s father testified, `We need to refresh [T.E.W.’s] memory a little bit, and I gave him another swat because [T.W.] had said that it happened in the living room.’ II RP at 175. T.E.W. said he would not admit to something that he did not remember.

T.E.W. made other statements admitting sexual contact with T.W. prior to the beating. He described one that occurred on the night of the incident when he told G., `You should have to do your dare because I did all of mine.’ I RP at 38. He also told G. that he and T.W. `do nasty things together.’ I RP at 54.

C.A. denied seeing T.E.W. perform oral sex on T.W. But he did testify that after a dare, he saw T.E.W. pull his swimming trunks down, saw T.W. put his head under water very close to T.E.W.’s penis, and saw T.W.’s head go up and down.

T.W. testified and denied any sexual contact between him and T.E.W. T.E.W. did not testify.

Procedural History

The State charged T.E.W. with two identical counts of first degree rape of a child under RCW 9A.44.073 and RCW 9A.44.010(1) for the events in the hot tub on December 25, 2000. In response to T.E.W.’s request for an election at the close of the State’s case, the prosecutor explained that Count I was a charge of oral sex, specifically, T.E.W. performing same on T.W., and Count II was a charge of anal sex, both allegedly occurring on that date. The trial court then dismissed Count II on T.E.W.’s motion.

The court convicted T.E.W. of the first count. In his oral ruling, he stated that T.E.W.’s confession to his father had `relatively little evidentiary value.’[1] II RP at 349. He also stated that he found C.A’s testimony the most convincing:

I think [C.A.], the reluctant witness, is the most convincing witness. He testified that he did not see [T.E.W.]’s mouth go onto [T.W.’s]’s penis, but he saw everything else, saw the movement, saw the relative location of the two boys there in the hot tub. It varied really from [G.]’s testimony only in that [G.] said that she could actually see the oral-penal [sic] contact, which may be a little bit questionable in my mind, but when those two together are considered and then the relatively little value, as I indicated, of [T.E.W.]’s own admissions, I am satisfied beyond a reasonable doubt that this happened.

II RP at 350. T.E.W. brought a motion for reconsideration, explaining that C.A. did not testify to seeing T.E.W. performing oral sex on T.W. but instead to the reverse. The judge acknowledged his misstatement and denied the motion.[2] The court sentenced T.E.W. to 15-36 weeks in Juvenile Rehabilitation Administration and suspended it under the Special Sex Offender Disposition Alternative. T.E.W. appeals.

ANALYSIS
Sufficiency of the Evidence

In reviewing a claim of insufficient evidence, we view the evidence in the light most favorable to the State and determine whether any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt. State v. Green, 94 Wn.2d 216, 221-22, 616 P.2d 628 (1980). A claim of insufficiency admits the truth of the State’s evidence and all inferences that can reasonably be drawn from it. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). In considering the evidence, ‘[c]redibility determinations are for the trier of fact and cannot be reviewed on appeal.’ State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

The elements of first degree rape of a child are (1) sexual intercourse with another who is (2) less than 12 years old, and (3) not married to the perpetrator, and (4) the perpetrator is at least 24 months older than the victim. RCW 9A.44.073. Sexual intercourse includes `any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another.’ See RCW 9A.44.010(1)(c). T.E.W. bases his challenge to the sufficiency of the evidence on the trial court judge’s expressed doubts about the credibility of G.’s testimony. T.E.W. states that he is not asking this court to invade the province of the factfinder; he asks this court to rule that (1) the only direct evidence of the sexual intercourse element was G.’s testimony, and (2) the trial court had a reasonable doubt as to her testimony on that element.

But the trier of fact makes credibility determinations. And although the trial court judge expressed some question as to whether G. was able to see beneath the water, he clearly stated in the motion to reconsider that he found her testimony sufficiently credible to establish the sexual contact between T.E.W. and T.W. beyond a reasonable doubt.

In our review of the record we view the evidence in the light most favorable to the State. G.’s testimony established that she saw T.E.W.’s mouth on T.W.’s penis. Additional testimony supported elements T.E.W. does not dispute. Thus, substantial evidence supports the trial court’s finding that T.E.W. engaged in sexual intercourse with T.W. in the hot tub on December 25, 2000.[3]

Voluntariness of Defendant’s Confession Relying on State v. McCullough, 56 Wn. App. 655, 784 P.2d 566, review denied, 114 Wn.2d 1025
(1990), T.E.W. contends the trial court erred in admitting his inherently unreliable coerced confession. But McCullough does not support T.E.W.’s argument.

In McCullough, a pizza store owner suspected the defendant of robbing his store and confronted him violently; the court on review acknowledged that it was arguable that the use of force caused McCullough to confess. 56 Wn. App. at 656. McCullough challenged the admissibility of this confession for the first time on appeal, arguing that the use of a coerced statement violated due process and thus could be raised at any time. McCullough, 56 Wn. App. at 657.

Division One disagreed, holding that `coercive police activity is a necessary predicate to the finding that a confession is not `voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment.’ McCullough, 56 Wn. App. at 658 (quoting Colorado v. Connelly, 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). In Connelly, the defendant claimed that his confession was involuntary because he was suffering from psychosis at the time it was made. The court disagreed, explaining that an inquiry into the state of mind of defendants is better left to rules of evidence. Connelly, 479 U.S. at 166-67.

The McCullough court also held that our state’s constitution only prohibits coercion by a state actor. 56 Wn. App. at 658.

Here, T.E.W. properly challenged the admissibility of his confession at trial. The issue for us, therefore, is not whether the claim is one of constitutional proportion that can be raised for the first time on appeal as it was in McCullough, but whether a confession coerced by a non-state actor is inherently unreliable incompetent evidence and, thus, should not be admitted. When the force coercing a confession is not a state actor, the challenge to the use of the coerced confession goes to the weight to be given the confession, not its admissibility.[4] Here the record amply demonstrates the court’s refusal to give much weight to T.E.W.’s confession, noting that it had observed T.E.W.’s father’s temper in the courtroom and had a clear picture of the amount of force used to extract the confession.

Admission of Evidence

T.E.W. also challenges the admission of several other items of evidence.

Admissibility of evidence is within the trial court’s sound discretion, and we will not reverse absent a showing of abuse of that discretion. State v. Brown, 132 Wn.2d 529, 578, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998). An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. State v. Castellanos, 132 Wn.2d 94, 97, 935 P.2d 1353 (1997). Discretion is abused if it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

1. Prior Bad Acts

T.E.W. asserts that the court erred in admitting evidence of prior sexual acts between T.W. and himself in violation of ER 404(b). While ER 404(b) prohibits the use of other crimes, wrongs, or acts to prove character in order to show action in conformity with it, the rule does allow the evidence for other purposes.[5] Here, the trial court allowed G. and C.A. to testify about certain uncharged acts they had seen between the victim and T.E.W. The trial court clearly stated that the evidence of uncharged sexual acts between T.E.W. and T.W. was admissible to show T.E.W.’s lustful disposition toward the victim.

Relying on a jury trial case, T.E.W. argues that it was error for the court to admit this testimony without first weighing its probative versus its prejudicial value and without finding that the acts occurred by a preponderance. But T.E.W. was tried before the court. In a bench trial, `the danger of prejudice is reduced because a trial judge, due to his or her experience and training, is in a better position than jurors to identify and focus on the probative quality of evidence . . . and to disregard the prejudicial aspects of prior convictions testimony.’ State v. Jenkins, 53 Wn. App. 228, 236-37, 766 P.2d 499, review denied, 112 Wn.2d 1016 (1989). The liberal admission of evidence in bench trials is `supported . . . with a presumption on appeal that the trial judge, knowing the applicable rules of evidence, will not consider matters which are inadmissible when making his findings.’ State v. Miles, 77 Wn.2d 593, 601, 464 P.2d 723 (1970). T.E.W. offers no argument why the presumption should not apply in this case, and we see no reason to believe that the trial court improperly used the challenged evidence.

2. Prior Inconsistent Statements

T.E.W. claims that the trial court erred in allowing T.W.’s prior inconsistent statement to impeach him on an extrinsic matter that he had no opportunity to explain or deny. During direct, T.W. denied that his mother ever told him what to say or not to say in court. Later he testified that `what my mom actually said is she didn’t want me to talk to the sheriff’s department.’ I RP at 142. Later, over T.E.W.’s objection, his stepmother testified that T.W. had told her the night before trial that `my mom told me not to say that it was [T.E.W.], and she told me to say that it was [G.].’ II RP at 252-53.

T.E.W. claims the trial court erred in allowing the victim’s prior inconsistent statement because it was on an extrinsic matter that he had no opportunity to explain or deny:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interest[s] of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2).

Br. of Appellant at 24-25 (quoting ER 613(b)).

T.E.W. cites State v. Johnson, 90 Wn. App. 54, 950 P.2d 981 (1998), as an example of the proper way to lay the foundation for extrinsic evidence.

Here, Johnson’s questions went to both Purcell’s prior inconsistency and his bias, and defense counsel laid an adequate foundation to impeach Purcell with the proferred [sic] testimony. Defense counsel directed Purcell’s attention to the prior statement, referred to the subject matter, and provided Purcell with an opportunity to explain or deny it.

Johnson, 90 Wn. App. at 70.

Here, the prosecutor asked T.W. if his mother had told him what to say in court. But she did not specifically direct T.W.’s attention to his conversation with his stepmother the night before trial, in which he allegedly told his stepmother that his mother had told him to deny that it was T.E.W. Since the State did not ask about the specific conversation with which it sought to impeach, it failed to give T.W. an opportunity to explain or deny it. Thus, the prior inconsistent statement should not have been admitted.

But allowing the statement was harmless error. Error is not grounds for reversal unless it is prejudicial. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980). And when the error is not of constitutional magnitude, it is not prejudicial unless, within reasonable probabilities, the error materially affected the outcome of the trial. Cunningham, 93 Wn.2d at 831.

T.E.W. did not provide (nor did we find) any authority addressing whether an error under ER 613(b) is a constitutional error. If the error had prevented T.E.W. from impeaching a State witness, it would have been constitutional error. See Johnson, 90 Wn. App. at 69 (holding that evidence of a prior inconsistent statement of a State witness is guaranteed by the constitutional right to confront witnesses, and error excluding such evidence is presumed prejudicial). But here, the error was in allowing the State to impeach its own witness with a prior inconsistent statement. Especially in a bench trial, impeaching on a collateral matter when the defendant may recall the witness to address the matter does not appear to have constitutional implications. Moreover, in light of the appellant’s voluntary admission that he performed all his dares, the error was harmless.

3. Impeachment of Complaining Witness

Finally, T.E.W. argues that the trial court erred in allowing T.W.’s impeachment (with a statement to police regarding alleged uncharged acts) because T.W. did not testify to any substantive issue in the case. But T.W. was the victim and his denial of any sexual activity between himself and T.E.W. is necessarily substantive.

Here, T.W. was the alleged victim and his credibility in testifying about what happened in the hot tub was `of consequence to the action.’ Impeaching T.W.’s statement that nothing happened could not establish that T.E.W. raped T.W. But it was relevant `only [to the extent that] (1) it tends to cast doubt on the credibility of the person being impeached, and (2) the credibility of the person being impeached is a fact of consequence to the action.’ State v. Allen S., 98 Wn. App. 452, 459-60, 989 P.2d 1222 (1999), review denied, 140 Wn.2d 1022 (2000). Thus, with T.W.’s denial discredited, the State could then present other testimony, including eyewitness accounts and the appellant’s admissions, to establish that T.E.W. committed the crime charged. It did so, and we affirm.

Attorney Fees

We grant the State’s request for taxable costs under RCW 10.73.160 and State v. Blank, 131 Wn.2d 230, 251, 930 P.2d 1213 (1997). The State is not required to comply with RAP 18.1.

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.

HOUGHTON and SEINFELD, JJ., concur.