Opinion
No. 28668-1-III.
Filed: August 18, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Franklin County, No. 07-1-50157-5, Vic L. VanderSchoor, J., entered December 8, 2009.
Reversed and remanded by unpublished opinion per Korsmo, J., concurred in by Kulik, C.J., and Siddoway, J.
A jury convicted Olga Shved of first degree child assault after considering two alternative means of committing the offense. The charging document, however, alleged only one of those two alternatives. We thus have to reverse the conviction and remand for a new trial. We also will address selected other arguments Ms. Shved raises that might occur at the retrial.
FACTS
Ms. Shved gave birth to a daughter, Ella, on February 4, 2006. Ella was born prematurely and had to spend several weeks in the hospital. Ms. Shved was the child's primary caregiver as her husband, Boris Shved, did not have much interaction with the baby. Regular medical checkups in March, April, and May showed Ella to be healthy.
Ms. Shved called for an ambulance to take Ella to the hospital on June 16, 2006, after the child started choking while being fed. The pediatric critical care physician, Dr. Jerry McLaughlin, found two skull fractures — one that had occurred in the previous few hours and an older skull fracture. Report of Proceedings (RP) 224, 242-243. There was bleeding in the brain associated with each fracture. RP 239. Additional x-rays revealed older arm, rib, and leg fractures; they ranged from a few weeks to a couple of months old. RP 232-34, 236-237. The pediatric critical care physician also observed bruising to the child's face that had been covered up with makeup. RP 230, 247-248.
Detective Chris Lee interviewed Ms. Shved at the hospital about Ella's injuries, speaking with her through an interpreter. She initially denied knowing anything about the child's injuries, but later said that she twice dropped the child while bathing her and the injuries may have occurred on those occasions. Her explanation of the bathing accidents changed repeatedly during the interview.
She ultimately was charged with one count of first degree child abuse. The amended information stated:
COMES NOW, Steve M. Lowe, Franklin County Prosecuting Attorney, and by this First Amended Information accuses OLGA V. SHVED of the crime of ASSAULT OF A CHILD IN THE FIRST DEGREE. [RCW 9A.36.120(1)(b)(ii)(a)], a Class "A" Felony, committed as follows:
That the said OLGA V. SHVED in the County of Franklin, State of Washington, during the time intervening between the 4th day of February, 2006, and the 16th day of June, 2006, then and there, being eighteen years of age or older and with intent to assault E.S. (DOB: 02/14/06), a child under the age of thirteen did intentionally assault the child and caused substantial bodily harm, and has previously engaged in a pattern or practice of assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks. FURTHERMORE, pursuant to RCW 9.94A.535(3)(b), the defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance and/or pursuant to RCW 9.94A.535(3)(h) the current offense involved domestic violence, as defined in RCW 10.99.020, and/or one or more of the following was present: (1) the offense was part of an ongoing pattern of psychological, physical, or sexual abuse or the victim manifested by multiple incidents over a prolonged period of time and/or (2) the offender's conduct during the commission of the current offense manifested deliberate cruelty or intimidation of the victim.
Clerk's Papers (CP) 79-80.
The case proceeded to jury trial. The State's theory of the case was that Ms. Shved was the only person with opportunity to assault the child. She was the nearly exclusive caregiver for the child, with the exception of a few occasions when her mother watched the baby. While the accounts varied, witnesses estimated that Ella was in her grandmother's care for a total of about four hours. RP 22, 351. Medical testimony described the litany of the child's injuries, which were inflicted on at least three different occasions: skull fractures, rib fractures, and leg fractures. Dr. Deborah Harper testified that there was "no possibility" the injuries were accidental. RP 76. Dr. McLaughlin likewise testified that the injuries were not accidental. RP 249-250.
The defense theory of the case was that Ms. Shved's brother, Vadim Dologan, was responsible for the child's injuries. He lived with their parents and had recently been released from Eastern State Hospital. The defense presented evidence that Mr. Dologan was violent and actively suffered from mental health problems during the period after Ella was born.
The court instructed the jury on the elements of first degree child assault. CP 34-35 (Instruction 7). The instruction stated the third element:
(3) That the defendant had previously engaged in a pattern or practice of
(a) assaulting E.S. (DOB 02/06/06) which had resulted in bodily harm that was greater than transient physical pain or minor temporary marks; or
(b) causing E.S. (DOB 02/06/06) physical pain or agony that was equivalent to that produced by torture.
CP 34. The definitional instruction also defined the crime in terms of both methods of establishing a pattern or practice. CP 33 (Instruction 6).
During deliberations, the jury inquired if it had to choose between alternatives (a) and (b). CP 22. Although the prosecutor had alleged two aggravating factors, the jury was not directed to consider them. The jury convicted Ms. Shved as charged. The trial court imposed a standard range sentence of 120 months. CP 11. Ms. Shved then timely appealed to this court.
The record does not reflect why the jury was not instructed on the aggravating factors.
ANALYSIS
Since it is the dispositive issue, we will first address Ms. Shved's argument that the jury was erroneously instructed on an uncharged theory of the crime. We agree that the jury wrongly was permitted to consider a theory of liability that had not been charged. Her other arguments, however, are without merit.
Elements Instruction
The state and federal constitutions require that an accused be informed of the charges he or she must face at trial. Const. art. I, § 22; Sixth Amendment. Because of the centrality of this notice to the ability to defend, it is error to instruct the jury on uncharged offenses or uncharged alternative theories. E.g., State v. Severns, 13 Wn.2d 542, 548, 125 P.2d 659 (1942); State v. Chino, 117 Wn. App. 531, 540, 72 P.3d 256 (2003). The error can be harmless if other instructions define the crime in a manner that leaves only the charged alternative before the jury. Severns, 13 Wn.2d at 549; Chino, 117 Wn. App. at 540.
"In criminal prosecutions, the accused shall have the right . . . to demand the nature and cause of the accusation against him, to have a copy thereof."
"In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation."
That is not the circumstance here. The amended information, quoted previously, clearly charges first degree child assault only under RCW 9A.36.120(1)(b)(ii)(A), and recites only the language of that subsection: "and caused substantial bodily harm, and has previously engaged in a pattern or practice of assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks." The statute, however, permits two theories of substantial bodily harm in a first degree child assault prosecution:
Causes substantial bodily harm, and the person has previously engaged in a pattern or practice either of (A) assaulting the child which has resulted in bodily harm that is greater than transient physical pain or minor temporary marks, or (B) causing the child physical pain or agony that is equivalent to that produced by torture.
Although they were not both charged, the court instructed the jury on both theories of bodily harm. CP 34-35 (Instruction 7). The court's instructions also defined the crime for the jury in terms of both theories of bodily harm. CP 33 (Instruction 6). Thus, the possibility of harmless error recognized in Severns and Chino was foreclosed by the instructions in this case.
The prosecution vigorously disputes whether there was either error or harm in this case. Relying on cases involving challenges to the sufficiency of charging documents, it argues that the language of the amended information was sufficient to convey the torture prong to Ms. Shved since the acts alleged would amount to torture of a young infant. While this argument is very creative, it is not apropos. Whether a charging document adequately expresses a charge is a different question than whether it even specifies a charge. The cases cited by the prosecutor deal with the former situation; this case presents the latter question.
There is no question that the information charged Ms. Shved under RCW 9A.36.120(b)(ii)(A) rather than subsection (b)(ii)(B), or even simply subsection (b)(ii). There simply is no allegation that the torture prong was to be placed before the jury. The charging document not only referenced solely subsection (b)(ii)(A), but the charging language also tracked only that portion of the statute. For all intents and purposes, the charging document omitted the torture alternative of subsection (b)(ii)(B). We cannot read that alternative into a charging document that did not include it.
The prosecutor correctly notes that the charging document erroneously refers to RCW 9A.36.120(b)(ii)(a), but the improper use of the lower case letter does not aid the argument that Ms. Shved was on notice that subsection (b)(ii)(B) was also in play.
The jury's inquiry also showed that it was actively considering the torture prong because it asked how to apply the two alternatives. Whether it actually relied upon that prong is something we cannot know as there was no special verdict form clarifying the jury's finding. For this reason, also, the error was not harmless.
Ms. Shved was tried on a theory of the case that she was not informed about by the charging document. Since the definitional instruction supported that theory, the error was not harmless. Severns, 13 Wn.2d 542; Chino, 117 Wn. App. 531. The conviction is reversed and the case is remanded for a new trial limited to the sole charged theory of first degree assault.
Evidentiary Sufficiency
Ms. Shved also argues that insufficient evidence was elicited to support the jury's verdict. This argument fails.
Well settled rules govern review of a challenge to the sufficiency of the evidence. The reviewing court does not weigh evidence or sift through competing testimony. Instead, the question presented is whether there is sufficient evidence to support the determination that each element of the crime was proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); State v. Green, 94 Wn.2d 216, 221-222, 616 P.2d 628 (1980). The reviewing court will consider the evidence in a light most favorable to the prosecution. Id.
The sole contested element is the identity of the child's assailant. Ms. Shved points to the fact that her mother and her brother both had access to the child during the charging period and argues that she was not the exclusive caregiver. Her argument misses the point. The identity of the assailant was a jury question; the issue on review is whether the evidence supports the determination that the jury made. Ms. Shved had nearly exclusive control over the child and, most critically, was the only caregiver at the time the child suffered the most recent head injury. Neither her brother nor her mother, both of whom denied assaulting the child, had access to Ella when the child suffered the final head trauma mere hours before arriving at the hospital. The jury understandably concluded that Ms. Shved assaulted her daughter that day and that she had done so in the past.
The evidence permitted the determination that Ms. Shved was the assailant. The evidence thus was sufficient to support the jury's verdict.
CrR 3.5 Hearing
Ms. Shved also argues that the trial court erred in finding her statements to Detective Lee at the hospital were admissible. The trial court concluded that Ms. Shved was properly advised of her rights and waived them. She contends that the State has not established that she understood and voluntarily waived her rights.
The trial court concluded that statements made to the first detective on the scene were not custodial and were admissible. Ms. Shved stipulated to their use at trial and does not challenge them on appeal.
Prior to conducting a custodial interrogation, police must first advise a suspect of her rights, including the right to remain silent and the right to consult with an attorney prior to answering any questions. Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). A defendant is in custody for purposes of Miranda when his or her freedom of action is curtailed to the degree associated with a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440, 82 L. Ed. 2d 317, 104 S. Ct. 3138 (1984). Interrogation is "express questioning or its functional equivalent" by police. Rhode Island v. Innis, 446 U.S. 291, 300-301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). The "functional equivalent" of questioning involves behavior that police should know is "reasonably likely to elicit an incriminating response." Id. at 302.
There is no question that Detective Lee interrogated Ms. Shved. The parties dispute whether the interrogation was or was not "custodial." The trial court orally found that Ms. Shved was in custody. The court's written findings, however, do not reflect that determination. The State argues that the trial court erred in finding that Ms. Shved was in custody. We need not resolve that challenge, or the lack of consistency between the written and oral rulings, because we conclude that the record supports the trial court's determination that Ms. Shved waived her rights.
Contrary to Ms. Shved's argument, the record supports the determination that Detective Lee advised Ms. Shved of her constitutional rights before questioning her. On cross examination at the CrR 3.5 hearing, the detective indicated that the questioning followed the advice of rights. RP (May 19, 2009) 56. The interpreter likewise testified that the advice of rights preceded questioning. Id. at 77. Accordingly, the record supports the court's determination that the advice of rights preceded questioning.
Ms. Shved also seizes on testimony from the interpreter that she appeared "confused" to argue that the confusion must have stemmed from the advice of rights, thus rendering her waiver invalid. The record does not necessarily bear that reading. The interpreter's testimony indicates that Ms. Shved's "confusion" related to the proceedings. For instance, the detective would sometimes leave the room after asking a question. Ms. Shved did not understand why. Id. at 77. After advice of rights, she was confused about what was going to happen to her. Id. at 69. She also was confused about a medical document that was read to her. Id. at 75-76. During questioning, she sometimes asked to have the questions restated. Id. at 78. However, she never asked to have any of the Miranda warnings reread or explained. Id. at 77. The Miranda warnings were read individually and Ms. Shved responded to most of them in English. Id. at 69-70.
The trial court seems to have concluded that whatever confusion Ms. Shved may have experienced, it did not extend to the substance of the Miranda warnings. Id. at 106. On this record, that is a reasonable conclusion to be drawn. She was told about her rights and agreed to talk with the detective. There was a factual basis for concluding that Ms. Shved waived her rights.
The court did not err in admitting Ms. Shved's statements to Detective Lee.
Other Suspects Testimony
Ms. Shved strenuously argues that the trial court erroneously limited her cross examination of Vadim Dologan, thus hindering her ability to cast him as the responsible party. The trial court permitted Ms. Shved to blame her brother for the crime and allowed her to enter extensive evidence about him. The trial court did not abuse its discretion by excluding some of the proffered evidence.
Long settled rules also govern our review of this issue. Evidence of other bad acts is permitted to establish specific purposes such as the identity of an actor or the defendant's intent or purpose in committing a crime. ER 404(b). Those purposes, in turn, must be of such significance to the current trial that the evidence is highly probative and relevant to prove an "essential ingredient" of the current crime. State v. Lough, 125 Wn.2d 847, 863, 889 P.2d 487 (1995). Evidence admitted under ER 404(b) is considered substantive evidence rather than impeachment evidence. State v. Laureano, 101 Wn.2d 745, 766, 682 P.2d 889 (1984), overruled in part by State v. Brown, 113 Wn.2d 520, 782 P.2d 1013, 787 P.2d 906 (1989); State v. Wilson, 60 Wn. App. 887, 891, 808 P.2d 754, review denied, 117 Wn.2d 1010 (1991).
Evidentiary rulings, including those under ER 404(b), are reviewed for abuse of discretion. State v. DeVincentis, 150 Wn.2d 11, 17, 74 P.3d 119 (2003). 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).
A criminal defendant has a constitutional right to present evidence in her own defense. Washington v. Texas, 388 U.S. 14, 19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967); State v. Thomas, 150 Wn.2d 821, 857, 83 P.3d 970 (2004); State v. Maupin, 128 Wn.2d 918, 924, 913 P.2d 808 (1996). There is, however, no right to present irrelevant or inadmissible evidence. State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
Washington permits a criminal defendant to present evidence that another person committed the crime when she can establish "a train of facts or circumstances as tend clearly to point out someone besides the accused as the guilty party." State v. Downs, 168 Wash. 664, 667, 13 P.2d 1 (1932); State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992), cert. denied, 508 U.S. 953 (1993). The United States Supreme Court recently has approved this standard for admitting "other suspects" evidence. Holmes v. South Carolina, 547 U.S. 319, 327, 164 L. Ed. 2d 503, 126 S. Ct. 1727 (2006). The court cited Thomas as following this rule. Id. at 327 n.*. When the State's case is entirely circumstantial, the Downs rule is relaxed: the "defendant may neutralize or overcome such evidence by presenting evidence of the same character tending to identify some other person as the perpetrator of the crime." State v. Clark, 78 Wn. App. 471, 479, 898 P.2d 854 (citing Leonard v. Territory of Wash., 2 Wash. Terr. 381, 396, 7 P. 872 (1885)), review denied, 128 Wn.2d 1004 (1995).
Evidence of possible motive alone is insufficient to establish this nexus. State v. Kwan, 174 Wash. 528, 533, 25 P.2d 104 (1933); State v. Condon, 72 Wn. App. 638, 647, 865 P.2d 521 (1993), review denied, 123 Wn.2d 1031 (1994).
Ms. Shved was not denied the opportunity to admit evidence to develop her claim that her brother committed the crime. She was allowed to admit extensive testimony against him, including the fact that he currently was taking medication for his schizophrenia, had antisocial personality disorder, had substance abuse problems, his mother thought him dangerous and did not trust him around the child, a mental health expert testified that males his age were far more likely to abuse a child, he talked to walls and would punch the air, that he was not taking his medication, and that he assaulted his younger brother in the presence of a detective who was visiting the house. The trial court's only restriction was to limit this type of evidence to the time period when Vadim Dologan was living in his mother's house during the charging period — May 3, 2006, through June 16, 2006. As a result of that limitation, Ms. Shved was not permitted to introduce evidence that Vadim had assaulted her and their mother in the past, as well as his behavior prior to his commitment to Eastern State Hospital.
He was jailed between May 26 and June 6 for a probation violation.
He was released on May 3, 2006.
Contrary to Ms. Shved's argument, she was not deprived of the opportunity to put on an "other suspects" defense. The cases she cites, which involved total exclusion of "other suspects" evidence, are not apropos. Instead, this was merely a situation governed by ER 404(b). Ms. Shved wanted to show that her brother was a violent person who had assaulted her and, hence, probably committed the assault on her child. Given the very limited relevance of this evidence, if it had any at all, there was no error in excluding it because it tended to show propensity rather than motive. The trial court also had admitted evidence of Mr. Dologan's assaultive and dangerous behavior during the charging period. Therefore, the trial court had a tenable basis to exclude the evidence occurring long before he was released from Eastern State Hospital.
Any errors in excluding these remaining incidents also would have been absolutely harmless. An ER 404(b) ruling does not present a constitutional issue. Dowling v. United States, 493 U.S. 342, 352, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990). Nonconstitutional error is harmless if, within reasonable probability, it did not affect the verdict. State v. Zwicker, 105 Wn.2d 228, 243, 713 P.2d 1101 (1986). That is the case here. The defense was permitted to extensively develop Vadim's behavior and condition during the relevant time period. His prior hospitalizations and assaults added little to the picture of Vadim Dologan that Ms. Shved presented to the jury. Her problem was that the "other suspects" defense was very weak. Her "suspect" was in the area only a small portion of the charging period and was never observed alone with the child during the few hours the baby was outside of her mother's exclusive care. There was no evidence presented that the child was ever injured when she was away from the defendant. The possibility of Vadim Dologan engaging in a pattern of assault against Ella was extremely remote given the limited opportunities he had.
Although not very definitive on the timing of the injuries, the medical testimony made it unlikely that the injuries were all inflicted within the 44 day period after Vadim Dologan was released from the state hospital.
Ms. Shved was not denied the opportunity to present her defense by the modest limitations imposed by the trial court. There was no error.
Remaining Issues
Ms. Shved also raises three other issues. Two of them — challenges to the assault definitional instructions and the prosecutor's closing argument — will not be addressed as it is unknown if the issues might recur at the new trial. Neither challenge was presented to the trial court; it is simply too speculative to address either claim when they might not recur or might not be challenged if they do arise again.
Finally, we note that Ms. Shved's challenge to the medical testimony that the injuries were not accidental is utterly without merit. E.g., State v. Mason, 160 Wn.2d 910, 932, 162 P.3d 396 (2007), cert. denied, 553 U.S. 1035 (2008); State v. Toennis, 52 Wn. App. 176, 185, 758 P.2d 539, review denied, 111 Wn.2d 1026 (1988); State v. Mulder, 29 Wn. App. 513, 515-516, 629 P.2d 462 (1981).
Reversed and remanded for a new trial.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and SIDDOWAY, J., concur.