Opinion
No. 56459-5-I.
July 24, 2006.
Appeal from a judgment of the Superior Court for King County, No. 99-1-00798-7, Deborah D. Fleck, J., entered June 21, 2005.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Counsel for Respondent(s), Carla Barbieri Carlstrom, King Co Prosecutor's Office, 516 3rd Ave Ste W554, Seattle, WA 98104-2390.
Affirmed by unpublished per curiam opinion.
Carl Chaney appeals his conviction of two counts of incest, contending that the trial court abused its discretion when it denied his motion for a new trial based upon newly discovered evidence. Finding no error, we affirm.
FACTS
When Carl Chaney married his wife, Mary, she had a three year old developmentally disabled daughter, J.P.J.P. suffered from a medical condition called encopresis, which caused her to frequently lose control of her bowels. The Chaneys subsequently had three more children.
To avoid confusion, we refer to Mary Chaney by her first name.
In 1998, when J.P. was an adult, she reported that Chaney had sexually abused her from the time she turned 14 until she left her parents' house at the age of 18. The State ultimately charged Chaney with two counts of incest.
Chaney was originally charged with two counts of incest and two counts of third degree child molestation. The resulting convictions were subsequently vacated for reasons that are not relevant here. The State then filed an amended information alleging only two counts of incest and a second trial was held on those charges.
At trial, J.P. testified that, after she turned 14, Chaney frequently made her rub his feet. The foot rubs usually took place in Chaney's bedroom no one else was nearby. J.P. testified that Chaney sexually assaulted her during the foot rubs and that she did not tell anyone about it because he threatened to hurt her.
Chaney testified that J.P. frequently rubbed his feet, but that he never sexually assaulted her. He said that J.P.'s encopresis disgusted him and that he cleaned up the feces that she left lying around. Chaney also testified that he had driven J.P. long distances and that he was actively involved in J.P.'s medical treatments and discipline, including making her wash her soiled pants.
The jury convicted Chaney as charged.
On October 27, 2004, this court granted Chaney's personal restraint petition with respect to his claim that he was diagnosed with obsessive-compulsive disorder (OCD), that the disorder precluded him from engaging in intimate physical contact with J.P. due to her encopresis, and that, had the jury heard evidence related to his disorder, it would have changed the outcome of his trial. This court remanded the matter to the trial court for an evidentiary hearing on whether this was newly discovered evidence that entitled him to a new trial. The order entered after that hearing, which took place on June 9 and 10, 2005, is the subject of this appeal.
At the evidentiary hearing, on direct-examination, Mary testified regarding Chaney's controlling behaviors and focus on cleanliness. Mary stated that Chaney never changed diapers, cleaned the cat litter box, or assisted in cleaning up after J.P.'s encopresis. According to Mary, Chaney was very controlling, often washed his hands, and demanded that the family follow specific rules regarding the preparation of food, laundry, cleaning, and personal hygiene. Mary further testified that Chaney required her to bathe before having sexual relations with him and that J.P. was required to wash her hands before rubbing Chaney's feet. However, during cross-examination, Mary acknowledged that Chaney did help clean up after J.P.'s encopresis when Mary was pregnant and when J.P. was young.
Dr. Frank Feeley, a counselor at Stafford Creek Correctional Center, also testified. On December 27, 2001, Dr. Feeley completed a psychological evaluation of Chaney as a result of a chemical dependency referral. Although Dr. Feeley had not originally diagnosed OCD, he testified that, based upon his review of Chaney's records, Chaney had the disorder.
On direct examination, Dr. Feeley testified that someone with OCD would not engage in sexual activity with someone with encopresis and that it was highly improbable that someone with OCD would touch someone with encopresis.
On cross-examination, Dr. Feeley acknowledged that if he learned that Chaney had helped clean up feces, he might rephrase his opinion to state that it was not impossible but "highly unusual" for Chaney to touch someone with encopresis. He also acknowledged that a person's sex drive could `trump' their OCD and that, if Chaney had pedophilia or paraphilia, the condition might override the OCD. Dr. Feeley further testified that being in a prison setting could exacerbate a person's OCD. Finally, Dr. Feeley testified that he was not aware of the facts underlying Chaney's conviction or whether Chaney had any sexual deviancies, and that he would need that type of information before being able to say that Chaney would never sexually touch J.P.
Chaney also testified at the hearing. Chaney acknowledged receiving foot rubs from J.P., but said she had to wash her hands beforehand. Chaney also said that he cleaned up after J.P.'s encopresis "a couple of times" and that to do so he would put on gloves. Chaney also acknowledged supervising J.P. when she washed out her underwear.
Lastly, the State presented testimony from Dr. David Hollenbeck, a psychiatrist from Western State Hospital. On April 27, 2001, Dr. Hollenbeck evaluated Chaney one time and diagnosed him with OCD. Dr. Hollenbeck testified that OCD can get more severe over time, that being incarcerated could exacerbate one's OCD, and that there was no way of knowing the severity of Chaney's OCD at the time he was found to have sexually abused J.P. Dr. Hollenbeck also stated that someone with OCD who has fears of contamination could nonetheless have such an intense sexual drive that he would find a way around his anxieties by incorporating the victim into a washing or cleaning ritual that would make it possible for the person with OCD to have sexual contact. Finally, Dr. Hollenbeck stated that he could not conclude that someone with OCD would never have sexual contact with someone with encopresis.
After listening to the testimony and counsels' arguments, the trial court reviewed the trial testimony and ruled that it was not probable that the newly discovered evidence of Chaney's OCD would have changed the outcome of the trial. The trial court found that Dr. Feeley's opinion that Chaney would not have physical contact with J.P. was inconsistent with Chaney and Mary's testimony that Chaney ordered J.P. to give him foot rubs, that he cleaned up after J.P.'s encopresis, and that he was actively involved in J.P.'s care. The trial court also found that the doctors' opinions relating to the unlikelihood of physical contact for foot rubs `draws into serious question the opinion that Mr. Chaney would not have sexually touched [J.P.]' Finally, the trial court found that the newly discovered evidence did not provide sufficient additional information, particularly in light of the court's assessment of the `credibility, significance and cogency of the evidence,' to probably change the outcome of the trial.
Clerk's Papers at 335.
Id.
ANALYSIS
Chaney argues that the trial court abused its discretion in denying his motion for a new trial. We disagree.
A trial court is vested with broad discretion in ruling on a motion for a new trial based upon newly discovered evidence. A ruling denying such a motion will not be reversed absent manifest abuse of that discretion. State v. Castro, 32 Wn. App. 559, 565, 648 P.2d 485 (1982). "To determine whether the newly discovered evidence will probably result in a different outcome upon retrial, the trial court must determine the credibility, significance and cogency of the proffered evidence." Id. The strength of the State's evidence can be considered by the court in determining whether the new evidence would have changed the outcome. State v. Hutcheson, 62 Wn. App. 282, 299, 813 P.2d 1283 (1991). The court may also consider whether the jury at trial would even believe the new expert testimony. State v. Evans, 45 Wn. App. 611, 614, 726 P.2d 1009 (1986).
In order to support a claim of newly discovered evidence, the defendant must prove that the evidence: (I) will probably change the result of the trial; (2) was discovered since the trial; (3) could not have been discovered before the trial by the exercise of due diligence; (4) is material; and (5) is not merely cumulative or impeaching. State v. Macon, 128 Wn.2d 784, 799-800, 911 P.2d 1004 (1996). A request for a new trial may be denied if any one of the factors is missing. Macon, 128 Wn.2d at 800. Here, the parties contest only whether Chaney's evidence of his OCD diagnosis would probably change the result of the trial.
We find that the trial court properly exercised its discretion in determining that the evidence regarding Chaney's OCD would not probably have changed the result of the trial. Dr. Feeley's testimony regarding the likelihood that someone with OCD would either clean up feces or receive foot massages from someone with encopresis was in direct contrast to Chaney's testimony that he frequently had J.P. massage his feet and that he did clean up J.P.'s feces. Also, the doctors' testimony about the severity and effects of Chaney's OCD at the time he was found to have sexually abused J.P. was inconclusive at best. Both doctors testified that, even if a person suffered from severe OCD with a fixation on cleanliness, that person's sexual drive or use of rituals could operate to enable them to over-ride other concerns about cleanliness in order to seek sexual gratification with an unclean person.
The trial court in this case presided over the trial and the evidentiary hearing. It had the opportunity to observe the demeanor and credibility of the witnesses in both proceedings. The trial court properly evaluated the strength of the State's evidence as well as the credibility, significance, and cogency of the proffered new evidence. The trial court's ruling was based on well-articulated, logical predicates. We find no abuse of discretion.
In his Statement of Additional Grounds for Relief, Chaney argues that the trial court misinterpreted the evidence and misapplied the law. After a careful review of his arguments and the record, we find that his pro se contentions have no merit.
Affirmed.
DWYER, BECKER and BAKER, JJ.