Opinion
No. 58006-0-I.
May 14, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-1-12362-0, Andrea A. Darvis, J., entered March 20, 2006.
Affirmed by unpublished opinion per Coleman, J., concurred in by Ellington and Dwyer, JJ.
Ponciano Austria appeals his indecent liberties conviction on the ground that the State did not prove an element of the crime as described in the "to convict" instruction. He also argues that the trial court abused its discretion in denying his motion for new counsel, in not entering written findings after a pretrial hearing, and in admitting hearsay as excited utterances. Because Austria argued below that the instruction did not create the element he now argues was unproved, we conclude that the principles of the invited error doctrine apply, preventing Austria from raising this issue on appeal. We also conclude that the trial court adequately inquired into the nature of the attorney-client conflict to determine that the conflict did not warrant new counsel, that any error in the trial court's failure to enter findings was harmless, and that the trial court did not abuse its discretion in determining that the declarant was still under the effect of the assault when making the statements admitted as excited utterances.
FACTS
Thirteen-year-old MS was at home with her cousin, Rowena Lomboy, watching two young children. Natie S., MS's mother, ran a day care in her home and had left MS and Lomboy with the children while she ran errands. Lomboy was in the basement with the children while MS took a shower upstairs.
As MS exited the shower, she heard the doorbell ring and expected her brother at the door. She wrapped a towel around herself and went to open the door. Instead of her brother, she saw Austria, her uncle by marriage, and let him in the house. MS and Austria describe the next events differently.
According to MS, Austria asked for bus passes that MS's father had left for him, and MS gave him the passes. Austria asked whether her parents were home, and MS told him that she did not know where they were. Austria then asked MS for a hug, and MS felt uncomfortable. She went into the kitchen, pretending to get something from the refrigerator, and Austria followed her.
MS testified that as she tried to open the refrigerator, Austria tried to grab her. MS resisted and used her legs to try to block him from touching her genitals. Austria touched her chest (over and under the towel) and touched her vagina with his hand. He also grabbed her arm while she was trying to push him away and hold the towel around herself.
MS escaped into the next room, and Austria continued to grab at her. She tripped and fell onto the ground, and Austria tried to touch her chest and vagina again. MS kicked Austria in the groin, and he got off her. Lomboy, still downstairs, heard a loud noise as if someone had fallen upstairs.
MS ran upstairs and locked herself in her bedroom. She testified that Austria knocked on her bedroom door and apologized, but she did not respond. Austria went downstairs to talk to Lomboy for a short conversation, and then left.
Shortly after he left, Austria called the house multiple times. MS did not answer the first few calls, but when she eventually answered the phone, Austria told her to lock the front door. MS was afraid that Austria was still in the house, and she stayed in her room.
When Natie returned home from her errands, she brought a friend with her into the house. After she had been home awhile, Natie saw MS and noticed that she looked as if she had been crying and looked angry. Natie thought MS could be angry with her, so she ignored her at first. A few minutes later, MS pulled Natie into another room and started sobbing as she described the assault. MS identified Austria as her assailant, and Natie noticed a bruise on MS's arm. Natie called the police, and the responding officer noticed that MS looked like she had been crying and had wrapped herself in a warm blanket even though it was not cold.
Austria was arrested about a month after the assault. He was read his Miranda rights and agreed to talk to the police detective about the incident. He initially denied touching MS, but eventually said that he may have accidentally bumped against her while he was at her house.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At trial, Austria claimed that he went to the house to get bus passes and that once MS gave him the passes, he left. He admitted that he called the house numerous times, but said he was worried he did not close the door all the way, so he wanted MS to check the door.
A jury found Austria guilty of indecent liberties, and he timely appeals the conviction.
ANALYSIS
"To Convict" Instruction
Austria argues that the use of the word "intentional" in the "to convict" instruction required the State to prove that the complaining witness intended sexual contact with the defendant. Because the State did not prove this, Austria argues that his conviction should be reversed.
The "to convict" instruction was proposed by Austria, and reads,
To convict the defendant of the crime of indecent liberties, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 27th day of March, 2004, the defendant knowingly caused [MS] to have intentional sexual contact with the defendant;
(2) That this sexual contact occurred by forcible compulsion;
(3) That the defendant was not married to [MS] at the time of the sexual contact; and
(4) That the acts occurred in the State of Washington.
. . . .
The trial court noted that the instruction's use of the word "intentional" in the first element was ambiguous, but the prosecutor stated that he did not object to the instruction because it conformed to language used in the information. Defense counsel also assured the trial court that no reasonable jury would read the instruction to mean that the crime required the complaining witness to intend sexual contact.
THE COURT: [Prosecutor], does the State have any position on insertion of the term "intentional" before sexual contact in the instruction which indicates what a person has to do to commit the crime of indecent liberties?
. . . .
[Prosecutor]: Your Honor, I did a little bit of quick checking, and I believe that [defense counsel's] position is well taken, that if we put something in, charge it in the Information, then I think we are required to prove it, so I have no objection to his proposed modifications of the two jury instructions.
THE COURT: My concern with the word "intentional," and I think your point is well taken, is that it's a little bit ambiguous as to whose intent we're talking about here.
I'll tell you why, the Pattern instruction says a person commits the crime of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another by forcible compulsion. And then we define what sexual contact is, and we define sexual contact as the touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party; but if we stick the word "intentional" in there, it may imply that it's intentional on the part of [MS] as opposed to intentional from the standpoint of Mr. Austria. And that's the only reason I'm hesitating, but I don't know why I'm even talking about it if both parties are in agreement.
[Defense counsel]: The difficulty with lawyers, they tend to — I can see the — I can see the judge's reading of it, I don't think the jury is going to see it that way, I think if you were to make an effort to break it down, you could reach that conclusion, I don't think it's reasonable to assume that the jury will break it down.
When you look at it, it is the defendant who's acting to have that sexual contact, and I think that's the clear reading of it. While there may be some possible ambiguity to it, I don't think — I don't think the likelihood of the jury looking at it that way is significant at all.
THE COURT: All right. I'm going to get off the bench and get that instruction, I'll be right back.
Verbatim Report of Proceedings (VRP) (June 28, 2005) at 147 — 49. Although Austria's defense counsel below assured the trial court that the instruction could only be reasonably read to mean that the defendant must intend the sexual contact, his appellate counsel now argues that the instruction must be read the opposite way — to require the State to prove that MS intended the sexual contact.
The State argues that Austria should be prevented from making this argument under the doctrines of invited error or waiver because he made the opposite argument below. Austria argues that those doctrines do not apply here. Austria argues that invited error applies only where a defendant's proposed instruction is given to the jury, and then the defendant attempts to claim on appeal that the instruction was erroneous. See State v. Medina, 112 Wn. App. 40, 47 n. 11, 48 P.3d 1005 (2002) (holding that invited error doctrine does not apply because the defendant did not argue that the "to convict" instruction he requested was erroneously given). Thus, because Austria argues not that the instruction was erroneous but that it added an additional unproved element to the crime, he claims the invited error doctrine does not bar his argument here.
While it may be true that the invited error doctrine does not technically apply here, we conclude that the principle underlying the doctrine — discouraging defendants from misleading trial courts — applies to prevent Austria from making this argument. See State v. Henderson, 114 Wn.2d 867, 868, 792 P.2d 514 (1990) (stating that without the invited error doctrine, there would be a "premium on defendants misleading trial courts; this we decline to encourage."). Below, Austria's counsel told the trial court that the only reasonable reading of the instruction was that "intentional" referred to Austria's intent, and the closing argument was consistent with that reading of the instruction. Here, Austria's counsel argues that the only reasonable reading of the instruction was that "intentional" referred to MS's intent — an interpretation that trial counsel argued was unreasonable.
Surely the State should have objected to the instruction as proposed and the trial court should not have given an instruction that ambiguously defined the elements of a crime, but we cannot permit Austria to argue at trial that one interpretation of the instruction is the only reasonable one, and then argue on appeal that the opposite interpretation is the only reasonable one. We conclude that under general principles of waiver and a policy against the misleading of trial courts, Austria's affirmative representation below that the instruction did not create an additional element bars his argument here that an additional element was added and not proved.
Moreover, the instruction requires that intentional sexual contact occur by forcible compulsion — but if the "intentional" referred to intent on the part of MS (as Austria now argues), it would not be by forcible compulsion because she intended it to occur. While Austria offers a strained reading of the instruction (that he could have initially forced the contact and MS later acquiesced, or that MS initially intended the contact and then changed her mind) to argue that the instruction can make sense with "intentional" referring to MS, the instruction as a whole more logically suggests that "intentional" refers to Austria because of the forcible compulsion element.
Therefore, because Austria's counsel below argued that the only reasonable interpretation of the instruction was that "intentional" referred to Austria, and because the language of the instruction as a whole logically supports that interpretation, we refuse to consider Austria's argument on appeal that the opposite interpretation is the only reasonable interpretation.
Motion for Substituted Counsel
Austria argues that the trial court erred in failing to conduct an adequate inquiry before denying Austria's motion for substituted counsel.
A trial court's ruling on a defendant's motion for substitution of counsel is reviewed for abuse of discretion. State v. Cross, 156 Wn.2d 580, 607, 132 P.3d 80, cert. denied, 127 S. Ct. 559 (2006); State v. Stenson, 132 Wn.2d 668, 733, 940 P.2d 1239 (1997). A defendant must show good cause to warrant substitution of counsel, such as "[']a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant.[']" Stenson, 132 Wn.2d at 734 (quoting Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991)). In reviewing the trial court's ruling on substitution of counsel, we consider (1) the extent of the attorney-client conflict alleged, (2) the adequacy of the trial court's inquiry into the conflict, and (3) the timeliness of the motion. Cross, 156 Wn.2d at 607.
In State v. Varga, 151 Wn.2d 179, 86 P.3d 139 (2004), the defendant informed the trial court of his "own general dissatisfaction and distrust with counsel's performance," and the trial court also questioned counsel about the merits of the defendant's complaint. Varga, 151 Wn.2d at 200. The reviewing court concluded that this colloquy did not demonstrate an abuse of discretion. The State here argues that like the trial court in Varga, the trial court properly inquired into the nature of the complaint and also sought counsel's perspective to determine whether the complaint warranted substitution of counsel:
[Defense counsel]: Your Honor, Mr. Austria requested I set this hearing to fire me. Perhaps the best approach, at this point, would be for him to address the Court.
THE COURT: I agree. Good morning, Mr. Austria.
THE DEFENDANT: Good morning.
THE COURT: Can you tell me what your issue is with [defense counsel] and his representation?
THE DEFENDANT: I don't trust him.
THE COURT: Why not?
THE DEFENDANT: Well, every time the two of us have a meeting, we cannot agree on things.
THE COURT: Like what?
THE DEFENDANT: Like dealing with the case; every time I talk to him, he tells me that this case is not (inaudible).
THE COURT: You know, Mr. Austria, one of the things that the attorney has to do is give you an honest assessment of the case; and that includes giving you the bad news about it as well as the good news. Anything else?
THE DEFENDANT: So does that mean I can't replace him?
THE COURT: I haven't ruled yet. I just want to make sure you had an opportunity to give me more views on the subject.
THE DEFENDANT: Nothing more.
THE COURT: All right. Mr. Austria, I understand how you view the case; but [defense counsel] is an experienced attorney, well known and well able to deal with cases such as yours; and the ultimate decision on cases where he is appointed by the Court is the Court's decision and not your individual decision. [Defense counsel]?
[Defense counsel]: Your Honor, there was one thing I wanted to add. Well, Mr. Austria and I have had a number of conversations regarding the best approach in the case; and I understand that may have caused some level of frustration for Mr. Austria. The difficulty in this case arose during preparation for trial, and I think Mr. Austria became frustrated with the process of going over material multiple times; and I think Mr. Austria and I can work well together if he understands that preparation for trial involves, perhaps, asking the same question multiple times. I would expect future problems only if Mr. Austria is unwilling to continue to sit down with me to discuss, perhaps for the seventh or eighth time, the details of the case.
THE COURT: Good point. What's the charge in this case, [defense counsel]?
[Defense counsel]: The charge is indecent liberties. The charge is indecent liberties, and the trial date is currently May 23rd.
[Prosecutor]: Right, this Monday.
THE COURT: Mr. Austria, [defense counsel]'s points are well taken; and, in fact, the point that he's willing to go over things multiple time testifies to his level of preparation; so you need to continue to work with him, and the motion is denied.
(May 17, 2005) at 5-8. Austria argues that this colloquy was inadequate because the trial court did not ask specific questions and was too reliant on counsel's description of the attorney-client communication.
But the trial court offered Austria an opportunity to air all of his concerns, and Austria did not elaborate beyond expressing a general mistrust and a failure to agree on the merits of the case. A general mistrust is not sufficient to warrant substitution of counsel; attorney-client conflicts must be so serious as to prevent presentation of an adequate defense. Stenson, 132 Wn.2d at 734. The trial court appropriately sought counsel's view of the conflict, and this further demonstrates that the trial court evaluated the merits of Austria's complaints before ruling. We conclude that the trial court did not abuse its discretion in denying Austria's motion.
Written Findings of Fact
Austria argues that the trial court erred under CrR 3.6 in failing to enter written findings on its decision to admit MS's hearsay statements and that he is prejudiced by this error because he is unable to assign error to the oral ruling.
In its trial memorandum, the State moved to admit Natie's testimony about what MS told her about the assault, either as "hue and cry" testimony or as an excited utterance. Austria filed a supplemental trial memorandum in opposition to the State's motion to admit the statements. The trial court stated that it would rule on the testimony after a hearing outside the presence of the jury.
At that hearing, MS's mother testified and the parties presented argument about the admissibility of MS's statements to her mother. The court ruled that some of the statements qualified as excited utterances — the statements made about the assault itself — and reserved ruling on MS's statements describing events after the assault.
Ultimately, the statements describing events after the assault were not offered at trial.
Austria argues that CrR 3.6 — and its provision requiring written findings — applies here because he wanted to exclude the hearsay evidence, so the hearing must have been a suppression hearing. The State points out that the hearing was not noted as a CrR 3.6 hearing and argues that it was instead a hearing on a motion in limine. Austria did not file a CrR 3.6 affidavit or motion, and the substance of the hearing demonstrates that it was a hearing on the State's motion in limine to obtain a ruling on potentially prejudicial evidence outside the presence of the jury. Thus, because the hearing was not officially designated a CrR 3.6 hearing and the substance of the hearing related to a motion in limine and not a CrR 3.6 motion, we conclude that CrR 3.6 does not apply.
Written findings, although required by CrR 3.6, are not required for every evidentiary ruling. Austria has cited no authority requiring written findings for an evidentiary motion in limine. But even if written findings were required, the trial court's failure to do so was harmless because the oral findings are sufficient to permit review of the issue on appeal. See State v. Thompson, 73 Wn. App. 122, 130, 867 P.2d 691 (1994). Absent prejudice to the defendant, a trial court's failure to enter written findings is not grounds for reversal. Thompson, 73 Wn. App. at 130.
Here, the trial court reviewed the relevant case law, applied those cases to the facts of this case, asked for clarification from the State as to which statements would be offered, and gave a ruling on certain statements:
[THE COURT:] I think the fact that — we don't know whether [MS] knew her mother was home in the hour between the time she came to sit on the steps when [Natie] was speaking to her friend, we do know that she seemed very angry, she seemed very upset, she wasn't crying, but her eyes were red and bloodshot, that this was a child who cried seldom and whose mother had never seen her upset to this degree once she pulled her mother into the den and burst into tears and then told her what happened. We have no indication that [MS] calmed down substantially before relating to her mom what happened.
I think certainly [MS]'s statement to her mother about what happened, her identification of the defendant as the person who assaulted her — allegedly assaulted her, would be admissible.
VRP (June 28, 2005) at 30. This oral ruling makes clear what the trial court's written findings would have been and, therefore, adequately permits us to review the admissibility of these statements. See State v. Smith, 76 Wn. App. 9, 17, 882 P.2d 190 (1994). We therefore conclude that even if the trial court erred in not entering written findings, such an error was harmless.
Excited Utterance
Austria claims that the trial court erred in admitting MS's statements to her mother as excited utterances.
A trial court's decision to admit excited utterances is reviewed for abuse of discretion. State v. Briscoeray, 95 Wn. App. 167, 171-72, 974 P.2d 912 (1999). An excited utterance is a statement made while the declarant is under the influence of a traumatic event, and such statements are excepted from the hearsay rule. ER 803(a)(2); State v. Palomo, 113 Wn.2d 789, 793, 783 P.2d 575 (1989). "The theory of this exception which vouches for its reliability is that the stress of the event suppresses the reflective faculties of the declarant with the result that the utterances are sincere and spontaneous. . . . The theory of reliability is further enhanced because circumstances produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication." Palomo, 113 Wn.2d at 796.
For hearsay to be admissible as an excited utterance, three requirements must be met: "(1) a startling event or condition must have occurred; (2) the statement must have been made while the declarant was still under the stress of the startling event; and (3) the statement must relate to the startling event or condition." State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997). The passage of time does not necessarily indicate that the second requirement has not been met. See, e.g., State v. Thomas, 150 Wn.2d 821, 855, 83 P.3d 970 (2004) (upholding admission of statement made one and one-half hours after murder by a witness to the murder); State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) (upholding admission of statements of rape victim made to police 3.5 hours after rape); State by Guizzotti, 60 Wn. App. 289, 296, 803 P.2d 808 (1991) (upholding admission of victim's statements made seven hours after rape).
Here, the parties' argument at trial focused on the second element — whether MS was still under the stress of the assault when she described it to her mother. The trial court stated in an oral ruling that the fact that MS seemed very upset and burst into tears when telling her mother about the assault — and that there was no indication that she had substantially calmed down from the assault before telling her mother about it — supported the admission of MS's statements describing the assault as excited utterances. While Austria argues that MS had substantially calmed down after the assault before talking with her mother, Natie testified that she had never seen MS as upset as she was when describing the assault. While MS may have appeared calmer when Natie first returned home, we conclude that the trial court did not abuse its discretion in finding that her description of the assault was made under the stress of the event.
The fact that MS did not cry or otherwise appear upset for the entire period between the assault and reporting it to her mother is not dispositive in determining whether the statements are admissible. In State v. Thomas, 46 Wn. App. 280, 284, 730 P.2d 117 (1986), the victim was raped in her bed, cried herself to sleep, and reported the rape to her mother at least six hours after the rape occurred. This court upheld the admission of the victim's statements to her mother as excited utterances because the victim was still upset when she talked to her mother, even though it was hours later and she had spent many of those hours sleeping. Likewise, Natie testified that MS was very upset while describing the assault to her, and Natie had noticed that MS was upset as soon as she returned home. Natie had been gone for three or four hours and MS told her about the assault about an hour after she returned home, so MS described the assault at most five hours after it had taken place. There is no evidence in the record that MS's statements were unreliable for any other reason, and we therefore affirm the trial court's admittance of these statements as excited utterances.
Statement of Additional Grounds
Austria raises six additional grounds for review in a pro se
First, Austria argues that he did not commit these crimes and that his family members conspired against him. This claim does not raise any legal arguments and need not be addressed further.
Second, Austria argues that he should have been offered an Alford plea. This argument is not supported by any citations to authority, and we decline to consider this argument further.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Third, Austria argues that his right to a speedy trial was violated because he did not know — due to a language barrier and the lack of an interpreter — that his attorney waived his rights to a speedy trial. There is no record on this issue because conversations — or lack of conversations — between Austria and his attorney are not reflected in the record. We cannot determine whether Austria knowingly waived his right to a speedy trial and, therefore, cannot consider this issue in a direct appeal.
Fourth, Austria argues that his attorney was ineffective for failing to move to suppress statements he made to the police because he did not know his Miranda rights due to a language barrier. A CrR 3.5 hearing was in fact held to address these statements, so Austria's attorney was not ineffective on this basis.
Fifth, Austria argues that even though he testified at trial and the trial court explained his legal rights on the record before he testified at the CrR 3.5 hearing, he did not knowingly give up his right to remain silent at trial because an interpreter did not explain his rights. An interpreter was present during all parts of the proceeding, and there is no evidence that the interpreter did not translate the trial court's statement to Austria about his right to remain silent, so there is no evidence in the record to support Austria's claim. We cannot, therefore, consider this issue on the existing record.
And last, Austria argues juror bias because one juror expressed the opinion that child rapists and pedophiles were the "lowest thing on earth." Voir dire was not recorded, so we cannot consider this issue on the existing record.
For the foregoing reasons, we affirm.
WE CONCUR: