Opinion
No. 35977-4-II.
April 29, 2008.
Appeal from a judgment of the Superior Court for Wahkiakum County, No. 05-1-00012-6, William J. Faubion, J. Pro Tem., entered February 28, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton, C.J., and Hunt, J.
Terence G. Field, Sr. appeals his conviction of attempted indecent liberties with forcible compulsion, arguing that the trial court violated his constitutional right to a fair trial by admitting evidence that was more prejudicial than probative, that his counsel ineffectively represented him, and that his sentence includes a condition punishing him in violation of ex post facto principles. Finding no reversible error, we affirm.
FACTS
Fourteen-year-old L.C. was staying with her grandmother, Darlene Stensland, in Cathlamet when she, two younger cousins, and Stensland visited the trailer home of Stensland's brother, Terence G. "Butch" Field, Sr., for dinner. After dinner, Stensland left the three children with Field while she and her daughter ran errands.
While the two younger children played outside, Field entered the bedroom where L.C. was using her laptop computer. According to L.C., Field put his hand down her back and "touched [her] butt." Report of Proceedings (Dec. 11, 2006) at 39. After L.C. moved his hand and told him, "Don't," Field put his hand on her leg and "grabbed [her] crotch." RP (Dec. 11, 2006) at 39. L.C. again objected and attempted to move away from Field, but he laughed and grabbed her breast. L.C. then attempted to push Field away and told him not to touch her, but he pulled her in and kissed her on the lips. L.C. was then able to push Field toward the living room where he returned to watching a baseball game on television.
L.C. testified that she waited in the bedroom for 20 or 30 minutes until Field fell asleep. She then took his cell phone and went outside. L.C. noticed that there were two videos recorded on the phone. L.C. played the videos, which were 10-second clips of Field masturbating and calling her name. Date stamps on the videos showed that Field had recorded them within the previous week. L.C. then called her friend Steven Kaji in Vancouver. After she told Kaji what Field had done, he and his parents drove to Cathlamet to pick her up.
When the group got back to Vancouver, L.C. called her stepfather at the family's home in Gresham, Oregon. When L.C. arrived home, she showed the lewd videos to her mother, Mariah Cabrera, and told Cabrera what had happened throughout the evening. Cabrera called the police to report the incident. The Wahkiakum County Prosecutor charged Field with indecent liberties with forcible compulsion, and the court issued a warrant for his arrest. The Multnomah County Sheriff's Office arrested and detained Field.
Before trial, Field moved to suppress the cell phone videos on the grounds that the State had accessed his cell phone without a search warrant. The trial court denied the motion.
At trial, the State, without objection, introduced testimony about the content of the videos and how L.C. had discovered them. The State then showed the videos to the jury using a computer disk containing copies of the videos, again without objection. The next morning, Field moved to exclude the videos, arguing that they were more prejudicial than probative. Field's counsel stated that he had failed to object before the jury saw the videos because he had been waiting for the State to move to admit them. The trial court denied the motion.
The State showed the videos to the jury before the court entered either the cell phone itself or the copies of the videos on the computer disk into evidence. Field did not object to the videos at that time. Later in the proceeding, the State moved to admit the actual cell phone itself, which still presumably contained the videos, and the court admitted it without objection. The State never formally moved to admit the computer disk containing copies of the videos into evidence.
The jury failed to agree on the charge of indecent liberties with forcible compulsion, but it convicted Field of attempt to commit that crime. Field's sentence included a condition that he not live within 880 feet of the facilities or grounds of a public or private school.
ANALYSIS I. The Videos
Field argues that the trial court violated his due process right to a fair trial when it allowed testimony about the content of the videos and allowed the jury to view the videos; he asserts that the prejudicial effect of the evidence so outweighed its probative value as to deny him a fair trial. The Washington Constitution guarantees criminal defendants a fair and impartial trial. Wash. Const. art. I, §§ 3, 22. Because Field did not object when L.C. first described what the videos showed and when the State then showed the videos to the jury, he must demonstrate that the error is constitutional and manifest.
The trial court ruled that the videos were admissible as res gestae. Field concedes that the videos could be admissible to prove his intent, but he reasons that because he denied any improper conduct with L.C., his intent was not at issue.
Field moved pretrial to suppress the videos and any related testimony, but Field based that motion only on an alleged unlawful search. The record related to that motion shows no discussion of the issues that Field raises here. Field made his only relevance objection well after the State showed the videos to the jury and that objection was limited to the decision to show the videos themselves, with no reference to suppressing testimony about the videos.
Generally, a trial court's admission of evidence does not implicate constitutional issues. In re Det. of Duncan, 142 Wn. App. 97, 102, 174 P.3d 136 (2007). Rather, we afford the trial court considerable discretion in admitting or rejecting evidence, rulings that we will reverse only for an abuse of discretion. See State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). To support his claim that the "grossly prejudicial effect" of the rulings here raises doubts about whether he received a fair trial, Field relies on State v. Swenson, 62 Wn.2d 259, 382 P.2d 614 (1963), and State v. Ford, 137 Wn.2d 472, 973 P.2d 452 (1999). Br. of Appellant at 13. Neither offers the support that Field needs to raise this evidentiary issue to constitutional proportions.
In Swenson, the State charged the defendant with participating in the murder of her employer and sponsor by talking the actual killer into committing the murder. The actual killer's wife, a critical witness for the State, was pregnant at the time of the trial and "collapsed" several times during the defense's cross-examination. Swenson, 62 Wn.2d at 271. The trial court granted recesses when these incidents occurred and also showed considerable concern before the jury for the witness's condition. Under these circumstances, the trial court held that the defendant was denied due process. Swenson, 62 Wn.2d at 281.
In Ford, the issue was whether the State proved the defendant's out-of-state convictions at sentencing. The State argued that the defendant had the burden of showing that its representations as to his convictions were incorrect. Ford, 137 Wn.2d at 480. The Supreme Court disagreed, holding that the State had the burden of proving out-of-state convictions and that its total failure to do so violated due process. Ford, 137 Wn.2d at 481.
We do not have the egregious circumstances present in Swenson, where a critical witness repeatedly collapsed during cross-examination and the judge appeared to be overly solicitous about her condition. Nor do we have the complete failure of proof that caused the Ford court to invoke due process principles.
We conclude that Field has not demonstrated the extreme circumstances that elevate evidentiary rulings to a violation of due process fairness standards. Accordingly, we decline to address his argument that the trial court erred in allowing testimony about the contents of the videos and in showing the videos to the jury. See RAP 2.5(a).
II. Ineffective Assistance Of Counsel
Field argues that his trial counsel was ineffective because he failed to object to inadmissible or unfairly prejudicial evidence. Specifically, Field points to testimony by Cabrera and Kaji as to what L.C. told them (hearsay), and to testimony by a deputy sheriff that he had arrested Field and interviewed him "in the jail." Br. of Appellant at 17.
To demonstrate that counsel was ineffective for failing to object to testimony, the defendant must show: (1) that the trial court would have sustained the objection if made, (2) an absence of legitimate strategic or tactical reasons for not objecting, and (3) that the trial result would have differed if counsel had objected (prejudice). See State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998) (citing State v. McFarland, 127 Wn.2d 322, 337 n. 4, 899 P.2d 1251 (1995); State v. Hendrickson, 129 Wn.2d 61, 80, 917 P.2d 563 (1996)).
A. Hearsay
Field faults counsel for not objecting to Kaji's testimony that L.C. told him that Field had molested her. Because the State offered Kaji's testimony to prove that Field had molested L.C., the statement met the ER 801(c) definition of hearsay. But the statement is still admissible if it falls within a hearsay exception, such as "excited utterances." ER 803(a)(2). A court may admit hearsay testimony under the "excited utterance" exception when a startling event occurred, the declarant made the statement while under the stress of excitement caused by the event, and the statement related to the event. State v. Williams, 137 Wn. App. 736, 748, 154 P.3d 322 (2007) (quoting State v. Chapin, 118 Wn.2d 681, 686, 826 P.2d 194 (1992)). Field argues that this was not an excited utterance because L.C. made the statement after Kaji and his parents picked her up. The record shows otherwise. Kaji testified that L.C. told him Field molested her during their first phone call, earlier in the evening. L.C. testified that she first called Kaji soon after Field molested her. Kaji testified that L.C. was crying, upset, and scared when she told him what had happened. Under these circumstances, the trial court could have admitted the statement as an excited utterance.
Field next claims that his trial counsel should have objected to Cabrera's testimony that her husband told her that L.C. had just called and claimed that Field molested her. Field asserts that Cabrera's testimony was hearsay because it included an out-of-court statement. Because Field did not object, we have no record of why the State elicited the testimony. If the State offered the statement to prove something other than "the truth of the matter asserted," it would not be hearsay. ER 801(c). Moreover, defense counsel may have had tactical reasons not to object because Cabrera's testimony provided additional evidence of L.C.'s delay in reporting the alleged abuse to her parents.
Field's theory at trial was that L.C. fabricated the allegations because she did not like living with her strict grandmother. Thus, Field argued that L.C.'s delay in telling her parents showed that she had fabricated the story and had not intended it to get to her parents. Cabrera's testimony that she did not find out about the incident until 11:00 that night when her husband said, "Wake up . . . [L.C.]'s on the phone. And she said Butch molested her," RP (Dec. 11, 2006) at 5, well after the incident occurred, and well after L.C. had phoned Kaji, supported Field's theory of the case. Counsel had valid tactical reasons not to object to the testimony. In conclusion, Field has not shown that counsel ineffectively represented him.
B. Testimony Regarding Arrest
Field next asserts that testimony that he had been arrested on a warrant and interviewed while in custody impermissibly created an inference that the State believed him to be guilty. He argues that his trial counsel should have objected to the testimony. Although a witness may not express an opinion about the defendant's guilt, State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001), Washington courts have expressly declined to take an expansive view of claims that testimony constitutes an opinion on guilt. City of Seattle v. Heatley, 70 Wn. App. 573, 579, 854 P.2d 658 (1993). "[T]estimony that is not a direct comment on the defendant's guilt . . ., is otherwise helpful to the jury, and is based on inferences from the evidence is not improper opinion testimony." Heatley, 70 Wn. App. at 578.
None of the challenged testimony amounts to an impermissible opinion. The deputy testified that Field had been arrested and that he interviewed him at the Multnomah County jail. This simple recitation did not directly express the deputy's belief that Field was guilty. Thus, Field has not shown that even if counsel had objected, the trial court would have sustained it. Moreover, assuming the testimony creates some inference as to what the police and prosecutor believed about Field's guilt, it is no more than the inference present in most criminal cases: that the defendant has been arrested and is being held for some period of time in jail. Because the testimony told the jurors nothing more than what they likely already knew, Field cannot show prejudice.
III. Ex Post Facto Punishment
Field contends that his sentence included a term that violated his right to be free from ex post facto punishment. The federal and state constitutions each prohibit ex post facto laws. U.S. Const. art I, § 10, cl. 1; Wash. Const. art. I, § 23. A statute violates ex post facto principles when it "imposes punishment for an act which was not punishable when committed, or which increases the quantum of punishment for the offense after the crime was committed." State v. Hennings, 129 Wn.2d 512, 525, 919 P.2d 580 (1996).
Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, a nonpersistent offender convicted of attempt to commit indecent liberties by forcible compulsion must be sentenced to community custody, among other conditions. RCW 9.94A.712(1)(a)(iii), (5). Among the conditions of Field's community custody is the requirement that he not live within 880 feet of the facilities or grounds of a public or private school. In July 2005, after Field committed the crime but before the trial court sentenced him, the legislature amended the statute to require that all sentences for Field's crime include the community custody condition. See RCW 9.94A.712(6)(a)(ii). Field argues that because the incident in question occurred before the effective date of that requirement, the trial court's decision to include the condition in his sentence increases his punishment ex post facto.
The sentencing statute in effect at the time Field committed his offense included the provision that community custody may also include conditions provided for in RCW 9.94A.700(5). See Former RCW 9.94A.712(6)(a) (2004). Sub-section .700(5) states that the sentence may include a provision requiring the offender to comply with any crime-related prohibitions. RCW 9.94A.700(5)(e). The statute defines crime-related prohibitions as orders prohibiting conduct that directly relates to the circumstances of the crime committed. RCW 9.94A.030(13). We leave the assignment of crime-related prohibitions to the discretion of the sentencing judge, and we will reverse only if manifestly unreasonable. State v. Powell, 139 Wn. App. 808, 819, 162 P.3d 1180 (2007); State v. Bahl, 137 Wn. App. 709, 714, 159 P.3d 416 (2007).
When a conviction involves sexual activities with a minor, restricting the offender's opportunity to contact that community is both related to the crime and reasonable for the protection of the public. State v. Riles, 135 Wn.2d 326, 347-49, 957 P.2d 655 (1998); State v. Julian, 102 Wn. App. 296, 306, 9 P.3d 851 (2000). Restricting Field from establishing his residence in the vicinity of a school is a reasonable protection related to his crime because his conviction involved attempting to molest a minor while two younger minors were also in his care and nearby. Because the restriction reasonably related to the crime committed, the court did not abuse its discretion by imposing the condition. And Field suffered no ex post facto punishment.
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.
Affirmed.
We concur:
Houghton, C.J.
Hunt, J.