Opinion
Nos. 60308-6-I; 60323-0-I.
March 9, 2009.
Appeals from judgments of the Superior Court for Snohomish County, Nos. 06-1-02094-9 and 06-1-02569-0, Michael T. Downes, J., entered June 29, 2007.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Becker and Appelwick, JJ .
In these linked appeals, codefendants Florena Romero and Jamie Wallin seek reversal of the convictions following an eight-day trial. The jury convicted Romero of four counts of sexual exploitation of a minor, one count of attempted sexual exploitation of a minor, and three counts of communication with a minor for immoral purposes. The jury convicted Wallin of three counts of child molestation in the first degree, four counts of sexual exploitation of a minor, one count of attempted sexual exploitation of a minor, and three counts of communication with a minor for immoral purposes. Romero and Wallin contend the trial court abused its discretion in finding ten-year-old G.N. and eight-year-old L.N. were competent to testify, and in admitting child hearsay statements and photographs seized from Romero's computer. Romero also asserts that the trial court violated her constitutional right to an unbiased jury by denying her challenges for cause, and her attorney provided ineffective assistance of counsel by withdrawing an objection under Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L.Ed.2d 476 (1968) to the admission of statements Wallin made to his mother when Romero was present. Concluding there is no reversible error, we affirm.
FACTS
V.N. and his wife, C.N., live in Bothell and have four daughters, A.N., E.N., G.N., and L.N. In 2006, A.N. was 16, E.N. was 11, G.N. was 9, and L.N. was 7. V.N. and C.N. knew Florena Romero through her parents. At the time, Romero was 21-years-old and living in Bothell.
In early August 2006, Romero went to the N.'s home to demonstrate a vacuum cleaner she was selling. Romero told the family that she was a photographer and she needed additional photographs for her portfolio. Romero asked V.N. and C.N. if she could take E.N., G.N., and L.N. one day to take photographs. V.N. and C.N. agreed to let Romero take the girls the following Sunday afternoon.
At some point before Sunday, Romero took L.N. shopping at Fred Meyer. While they were at Fred Meyer, Romero introduced L.N. to her 31-year-old boyfriend, Romero arrived on Sunday at around 2:00 p.m. Romero said that she planned to take the girls to the lake to take photographs. When C.N. suggested that 16-year-old A.N. should also go, Romero looked worried and said, "no, no, no. I don't have enough . . . room in my car." Romero and the three younger girls left to go to the lake. Before going to the lake, Romero drove to Fred Meyer to pick up Wallin. Romero, Wallin, and the girls went to the Old Country Buffet to eat. Afterwards, Romero drove to Twin Lakes in Arlington.
At the lake, E.N., G.N., and L.N. changed into their swimsuits. Romero and Wallin took photographs of the girls while they were playing and swimming. Romero then suggested going to a more secluded part of the lake. To get there, Wallin had to carry the girls across the water. After they set out the blankets, Wallin left to urinate. Romero told the girls to go with her and follow him, "[l]et's go and see." The testimony differed about what happened next. G.N. said that Romero grabbed L.N.'s hand and made her touch Wallin's penis. E.N. said that Romero told L.N. to touch Wallin's penis, but that L.N. did not do so. L.N. denied touching Wallin.
Romero took off her swimsuit and told the girls to take off their swimsuits and go swimming with her in the lake. G.N. and L.N. took off their swimsuits, but E.N. did not. After they swam, Wallin and Romero took photographs of G.N. and L.N. naked. Wallin also took photographs of Romero naked posing with G.N. and L.N. Romero and Wallin then told L.N. and G.N. to lay on their stomachs and spread their hands and feet apart so they could take pictures.
After leaving the lake, Romero drove to Wallin's apartment in Everett. On the way, Romero told E.N. that "she could show us how to do sex." After they arrived at the apartment, Wallin ordered pizza. While waiting for the pizza, Wallin took photographs of the girls in their dresses. Wallin and Romero also showed the girls books with pictures of naked adults and children. At some point, Romero told G.N. that she liked little feet and wanted to "make a book of little feet." G.N. said that Romero then took photographs of her feet.
After eating pizza, Romero and Wallin told the girls that they wanted to take more photographs. Romero asked the girls to take off their clothes. G.N. and L.N. took off their clothes, but E.N. did not. E.N. said that Romero removed her clothes and took photographs of G.N. and L.N. naked. Wallin then told G.N. and L.N. to lie down on their backs, put their legs in the air, and spread their legs apart so he could take photographs of their vaginas. G.N. said that Wallin used two fingers to spread open her vagina. Wallin also touched L.N.'s vagina, ostensibly to brush away sand or dirt. E.N. testified that Wallin also took photographs of "their bottom[s]."
According to E.N., after Wallin took the posed photographs of G.N. and L.N., Romero said she and Wallin were going to have sex and "told us to sit right next to them" and watch. While engaging in intercourse, Romero told G.N. and L.N. to "`[c]ome here lay on my stomach so you can see closer,'" but the girls did not do so. G.N. testified that after Romero and Wallin were done, "liquid stuff came out of [Romero's] private part."
When the girls had not returned by 8:30 p.m. that evening, C.N. called Romero and told her to bring the girls home as soon as possible. At some point before leaving the apartment G.N. said that Romero put her mouth over Wallin's penis. Romero drove Wallin to Fred Meyer and then drove the girls home. Romero told E.N., G.N., and L.N. not to tell their parents about what had happened. Romero wrote her phone number on E.N.'s hand and told her "if anything happens that I should call her."
The girls arrived home at approximately 9:45 p.m. and immediately went upstairs to go to bed. Before going to bed, E.N., G.N., and L.N. agreed not to tell their parents what had happened that day. Romero stayed for about an hour and talked to C.N. about the problems with her marriage.
E.N. and G.N. were sick that night. In the middle of the night, G.N. told her father she could not sleep. C.N. testified that she was worried about the girls and she was concerned about her conversation with Romero. When L.N. woke up the next morning, C.N. asked her about the day before and learned for the first time about Wallin. When C.N. asked whether anyone had touched her inappropriately, L.N. cried and pointed to her vagina.
C.N. woke up the other girls to find out what had happened the day before. L.N. told C.N. about being touched and that Romero and Wallin had sexual intercourse in front of them. E.N. provided more details and confirmed that Wallin and Romero had sexual intercourse in front of them. G.N. was crying so hard she could hardly speak, but agreed with what L.N. and E.N. had told C.N.
C.N. was very upset and called V.N. at work and told him to come home. C.N. then called Romero and asked:
[W]hy she had to do something like that to my children. And she denied at the beginning. And . . . [t]hen she said what she did to her — you know, to herself. . . . But she said that the girls were asking for something like that. And I said how can you say something — how can my girls, you know ask for something when they don't know. . . . What she did with the man that she was with at the time.
After C.N. hung up, she told her aunt who lives with them, Ana Bogdan, about what had occurred.
When V.N. arrived home, he called the police. V.N., C.N., and the girls left to go to the Kenmore police station. After they left, Romero called and asked to speak to C.N. Bogdan told Romero C.N. was not home and that she had gone to the police. According to Bogdan, Romero said "why did she go there[?] She did not have to go there. She should have spoken to me first. For us to understand each other. So we can understand amongst ourselves so that nobody would find out anything." Bogdan testified that Romero sounded desperate and insisted that Bogdan call C.N. "and to tell her not to go to the police. . . ."
The Kenmore police told V.N. to go to the police department in Everett and that the Everett police would need to know where the incident occurred. Before going to the Everett police station, the girls showed V.N. where Wallin lived.
The Everett police took a statement from E.N. while her father was present. E.N. described what had happened and showed the officer the phone number Romero had written on her hand. V.N. testified that this was the first time he heard one of his daughters describe what had occurred. The Everett police did not interview G.N. or L.N. but made arrangements for a child interview specialist to do so.
The next day, a child interview specialist with the Snohomish County Sheriff's Office, Sonja Veile, interviewed G.N. and L.N. The interviews with G.N. and L.N. were recorded on DVD. The interview with G.N. lasted over two hours. G.N. described in detail what had occurred at the lake and at the apartment.
In the interview with L.N., L.N. generally gave short, direct answers describing the incidents, but did not provide as much detail as G.N. L.N. told Veile that Romero told them to take off their swimming suits at the lake and Romero and Wallin then took pictures. L.N. said that at the apartment, Wallin "took pictures close up at our private." L.N. told Veile that Wallin touched her "at my private" with his hand.
The police did not find any photographs of E.N., G.N. or L.N. at either Wallin's or Romero's apartment. When the Everett police searched Wallin's apartment, they found books with pictures of naked adults and children. Wallin's desktop computer hard drive was missing. When the police searched Romero's apartment, they found a laptop computer containing digital photographs of other children and photographs of children's feet in a computer folder titled "Feet Folder."
The State charged Romero with one count of child molestation in the first degree based on the allegation that Romero forced L.N. to touch Wallin's penis at the lake. The State also charged Romero with four counts of sexual exploitation of a minor as to G.N. and L.N., one count of attempted sexual exploitation of E.N., and three counts of communication with a minor for immoral purposes. The State charged Wallin with four counts of child molestation in the first degree as to L.N. and G.N., four counts of sexual exploitation of a minor, one count of attempted sexual exploitation of E.N., and three counts of communication with a minor for immoral purposes. As to each count, the State alleged an aggravating factor under RCW 9.94A.535(3)(o) based on a history of sex offenses and that Wallin was not amenable to treatment.
Before trial, the court held a competency and child hearsay hearing. G.N., L.N., C.N., and Veile testified. The court found that ten-year-old G.N. and eight-year-old L.N. were competent to testify. The court also found that the child hearsay statements G.N. and L.N. made to C.N. and Veile were admissible.
During the eight-day jury trial, a number of witnesses testified on behalf of the State, including G.N., L.N., E.N., A.N., C.N., V.N., Veile, C.N.'s aunt, Wallin's mother, and several police officers. E.N. G.N., and L.N., testified about what happened at the lake and at the apartment. E.N. also described in detail how Wallin took sexually explicit photographs of G.N. and L.N., touched L.N.'s vagina, and had sexual intercourse with Romero in front of the girls.
Wallin's mother, Loydeen Wallin, testified about what Wallin told her when Romero and Wallin came to see her in early August. Loydeen said that Wallin and Romero were sitting directly across from her in her small one bedroom apartment when Wallin "told me that they had done something. He was worried that he was in some big trouble. . . . He told me that they, um, had sex in front of three little girls, age eleven, nine, and seven. . . ."
Loydeen also testified that:
They said that they had taken three little girls shopping and bought them some dresses so they could take a portrait. And took them out to lunch and then went to a lake because it was hot that day. And the three little girls — two of the little girls — I think the youngest ones I believe — wanted to go skinny dipping.
When asked "how many cameras they had," Loydeen said, "I believe there were two or three cameras and a digital camera." Loydeen also said that Wallin told her that he did not want to go pick up his paycheck or go back to his apartment because of the police. Loydeen testified that the conversation lasted approximately 45 minutes and that Romero was "very upset." She was very distraught . . . very emotional," Loydeen said that at some point during the conversation, Romero went to the bathroom for a short period of time.
Romero's theory at trial was that even though she had behaved inappropriately, she did not commit the charged crimes. Romero argued that the girls were not credible. While Wallin conceded that he had sexual intercourse with Romero in front of the girls, he argued there was no evidence that he, rather than Romero, communicated with the girls. Wallin also claimed that the girls' testimony was not credible. Romero and Wallin did not testify at trial.
The jury found Romero and Wallin not guilty of child molestation in the first degree based on the allegation that Romero forced L.N. to touch Wallin's penis. The jury convicted Romero and Wallin on all other counts.
Wallin waived his right to a jury trial on the alleged aggravating factor under RCW 9.94A.535(3)(o). Because the State could only prove one prior sex offense, the court concluded the State did not prove the aggravating factor. At sentencing, the court ruled that Wallin's 1994 child molestation conviction elevated the misdemeanor convictions of communicating with a minor to felonies. The court sentenced Wallin as a persistent offender to life without the possibility of parole. The court sentenced Romero to 144 months of confinement.
Wallin stipulated that he had a conviction in 1994 for child molestation in the first degree.
Romero and Wallin appeal. Because Romero and Wallin raise many of the same issues, the appeals are linked for review.
ANALYSIS
Child Competency
Romero and Wallin contend the trial court abused its discretion in evaluating the factors under State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967), and finding that G.N. and L.N. were competent to testify. Wallin also asserts that neither G.N. nor L.N. demonstrated an understanding of the obligation to speak the truth on the witness stand, and L.N. could not accurately recall past events. Relying on Jenkins v. Snohomish County Public Utilities Dist. No. 1, 105 Wn.2d 99, 101-03, 713 P.2d 79 (1986), Romero argues the contradictions in G.N.'s and L.N.'s trial testimony establish they were not competent to testify.
Romero and Wallin do not assert that E.N. was not competent to testify.
A witness is not competent to testify if the witness "appear[s] incapable of receiving just impressions of the facts, respecting which they are examined, or of relating them truly." RCW 5.60.050(2). In Allen, the Washington Supreme Court established a five-part test to determine if a young child is competent to testify. The child must demonstrate:
(1) an understanding of the obligation to speak the truth on the witness stand; (2) the mental capacity at the time of the occurrence concerning which he is to testify, to receive an accurate impression of it; (3) a memory sufficient to retain an independent recollection of the occurrence; (4) the capacity to express in words his memory of the occurrence; and (5) the capacity to understand simple questions about it.
Allen, 70 Wn.2d at 692. Each of the five factors must be met to establish competency. In re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998).
A trial court's competency determination is accorded great deference and will not be disturbed on appeal absent a manifest abuse of discretion. A.E.P., 135 Wn.2d at 223. The court abuses its discretion when its decision is manifestly unreasonable or is based on untenable reasons or grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997). Because "[t]he competency of a youthful witness is not easily reflected in a written record," we must rely on the trial judge "who sees the witness, notices the witness's manner, and considers his or her capacity and intelligence." State v. Woods, 154 Wn.2d 613, 617, 114 P.3d 1174 (2005). We examine the entire record in reviewing the court's decision. Woods, 154 Wn.2d at 617 (citing State v. Avila, 78 Wn. App. 731, 737, 899 P.2d 11 (1995)).
G.N., L.N., their mother, C.N., and the child interview specialist, Veile, testified at the competency and child hearsay hearing. The court carefully analyzed the Allen factors and found G.N. and L.N. competent to testify.
I had an opportunity to watch the children in the courtroom myself. I had the opportunity to review the . . . DVD recordings of [G.N.'s] child hearsay interview by Sonja Veile. And I also had the chance to look at . . . [L.N.'s] interview with Sonja Veile. . . .
It is the Court's finding that both of these young ladies are clearly competent to testify. . . .
Both of the girls understand that they must speak the truth on the stand. Both of them clearly knew the difference between a truth and a lie and demonstrated that knowledge.
Both of them . . . had the mental capacity at the time of the event to receive an accurate impression of events as they were occurring. Both of them have sufficient memory to retain . . . independent recollection of the events. [G.N.'s] is clearly better and more detailed. Part of which may be a better developed memory on [G.N.'s] part. Part of that may be more that [G.N.] is a talker or more a talker than her sister is. But that doesn't diminish the fact that [L.N.] also has sufficient memory to maintain an independent recollection of the events.
Both of the girls have the capacity to verbally express their memory of the events. Both can understand simple questions about the events.
So in terms of competency to testify, I have utterly no hesitation whatsoever in saying that both of these girls are competent to testify.
The record supports the trial court's determination. At the time of the competency hearing, G.N. was ten-years-old and L.N. was eight-years-old. The record reflects that G.N. and L.N. understood the importance of telling the truth. G.N. and L.N. each accurately answered questions about school, their teachers, and past holiday celebrations. G.N. and L.N. testified about what happened on August 6, talking to their mother the next day, going to the police, and the interviews with Veile.
As to G.N., Wallin argues that because she testified that one of her sisters "might get in trouble" if she told a lie, G.N. did not demonstrate that she understood the importance of telling the truth in court. The record does not support Wallin's argument. G.N. testified at length about the importance of telling the truth, and why telling a lie is not acceptable. G.N. demonstrated through concrete examples that she knew the difference between the truth and a lie. G.N. also testified that she understood that telling the truth in court is especially important.
As to L.N., Wallin argues that because she nodded her head after the judge read her the oath, and answered "I don't know" when the judge asked what nodding her head meant, L.N. did not understand her obligation to testify truthfully. However, the record shows that when the court followed up by asking L.N. whether she promised to tell the truth, L.N. nodded again and emphatically said "[y]es." L.N. also testified that telling a lie is bad and gave examples that showed she knew the difference between the truth and a lie. L.N. also testified about the importance of telling the truth after promising to do so.
Wallin's reliance on State v. Karpenski, 94 Wn. App. 80, 971 P.2d 553 (1999), is misplaced. Here, unlike in Karpenski, the record does not show that either G.N. or L.N. testified about events they "`could not possibly have recalled,'" that either girl was confused about "`dream versus reality,'" or that they were "`not old enough to be able to separate that confusion.'" Karpenski, 94 Wn. App. at 106.
Relying on L.N.'s momentary confusion over whether G.N. was nine or ten-years-old, Wallin also contends that L.N. could not answer basic factual questions correctly. But the record shows that L.N. accurately stated the age of her other sisters.
Wallin also asserts that L.N. could not accurately recall past events. Wallin relies on L.N.'s response that she did not know whether the events in August happened "before Christmas or after Christmas" or "before school started this year or after you started second grade." But in response to more precise questions, L.N. testified about the last time she celebrated Thanksgiving and Halloween. In addition, L.N.'s testimony about her teacher and school also showed that L.N. was able to recall past events around the date of the incidents. State v. Sardinia, 42 Wn. App. 533, 537, 713 P.2d 122 (1986). And unlike in A.E.P., there was no dispute in this case about when the alleged events occurred. A.E.P., 135 Wn.2d at 224-26.
Romero relies on Jenkins to argue that because the trial testimony in some respects contradicted the pretrial testimony, G.N. and L.N. were not competent. In Jenkins, the trial court found a child was competent based solely on deposition testimony. Jenkins, 105 Wn.2d at 102. The child stated in his deposition that he had warned a friend about the dangers of electricity prior to the accident at a power plant. Jenkins, 105 Wn.2d at 102. But the child also said that he did not learn about electricity until after the accident. Jenkins, 105 Wn.2d at 102. Using a de novo standard of review, the court concluded that based on the contradictory statements in the deposition, the child did not have a sufficient memory of the occurrence and was not competent to testify. Jenkins, 105 Wn.2d at 102-03. However, the court stated that if the trial court relies on the in-court testimony of the child to determine competency, then any contradictions "go to credibility rather than the admissibility." Jenkins, 105 Wn.2d at 103. Here, unlike in Jenkins, G.N. and L.N. testified at the competency hearing and the court relied on that testimony in determining whether G.N. and L.N. were competent to testify.
Moreover, many of the alleged contradictions Romero points to are between different witnesses or are not contradictions at all. For instance, Romero argues that L.N. contradicted herself about who asked her to take off her swimsuit at the lake. But the record shows that L.N. was testifying about the request to take off her clothes at two different times — at the lake and later at the apartment. Similarly, L.N.'s testimony about who took pictures of her and who touched her, describes two different occurrences, first at the lake and then at the apartment. In addition, when a child is "not entirely consistent on certain details," but unwavering about the central allegations, a child's trial testimony does not "suggest[] the trial court abused its discretion in ruling the child was competent." State v. Woodward, 32 Wn. App. 204, 207-08, 646 P.2d 135 (1982).
Wallin also asserts that L.N. contradicted G.N.'s testimony about whether G.N. was present when Romero picked up Wallin from Fred Meyers. However, the record shows that L.N. was describing the earlier trip with Romero when G.N. was not present.
We conclude the record supports the trial court's determination that ten-year-old G.N. and eight-year-old L.N. were competent to testify at trial.
Child Hearsay
Romero and Wallin next contend that the court abused its discretion in evaluating the factors under State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d 197 (1984) and admitting G.N.'s and L.N.'s out-of-court statements to their mother and Veile.
Romero and Wallin also claim the hearsay statements were inadmissible because G.N. and L.N. were not competent to testify and therefore their constitutional right to confrontation was violated. Because we conclude the record supports the trial court's competency determination, we need not address this argument.
We review the trial court's decision to admit child hearsay evidence for abuse of discretion. State v. Swan, 114 Wn.2d 613, 652, 790 P.2d 610 (1990). The trial court is necessarily vested with considerable discretion in evaluating the indicia of credibility. A trial court abuses its discretion only when its decision is manifestly unreasonable or is based on untenable reasons or grounds. State v. Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997).
Under RCW 9A.44.120, a child victim's hearsay statement is admissible if the "time, content, and circumstances of the statement provide sufficient indicia of reliability" and the child testifies. RCW 9A.44.120(1), (2)(a). In Ryan, the court identified the following applicable factors to determine reliability under RCW 9A.44.120: (1) whether the declarant had an apparent motive to lie; (2) the declarant's general character; (3) whether more than one person heard the statement, (4) whether the statement was spontaneous; (5) the timing and relationship between the declarant and the witness; (6) whether the declaration contained express assertions of past fact; (7) whether cross examination could show the declarant's lack of knowledge; (8) the remoteness of the possibility that the declarant's recollection is faulty; and (9) whether the circumstances surrounding the statement suggest the declarant misrepresented the defendant's involvement. Ryan, 103 Wn.2d at 175-76. The factors are considered as a whole and no single factor is decisive. State v. Young, 62 Wn. App. 895, 902, 802 P.2d 829 (1991). Here, the trial court engaged in an extensive analysis of each of the Ryan factors and ruled that G.N.'s and L.N.'s statements were reliable.
As to the first factor, Romero contends the trial court abused its discretion by not taking into consideration the possibility that G.N. and L.N. had a strong motive to lie to avoid punishment for taking off their clothes and skinny dipping. In determining whether G.N. or L.N. had a motive to lie, the court expressly found that there was "no evidence whatsoever of any apparent motive to lie on the part of either of these girls."
The record does not support Romero's argument that the girls hoped to gain an advantage or avoid punishment by telling the truth. Romero's reliance on Loydeen Wallin's testimony is unpersuasive. According to Loydeen, Wallin told her that G.N. and L.N. wanted to go skinny dipping. Wallin's self-serving statements to his mother do not undermine the trial court's finding that there was no motive to lie. Likewise, E.N.'s testimony that she felt responsible because she was the older sister does not show a motive for G.N. or L.N. to lie.
As to the fourth factor, Romero and Wallin argue that because the statements made to Veile were not spontaneous and G.N. and L.N. were never given the opportunity to retract or modify their statements, they were not reliable.
The court found that G.N.'s and L.N.'s statements in the interviews with Veile were not entirely spontaneous, but that the initial disclosures to their mother were spontaneous.
These children had gone home and gone to bed. And at least [G.N.] was upset, and the mother perceived there was a problem. So the mother did ask [L.N.] a direct question as to what happened. And [L.N.] did say yes, I had been touched, although I wasn't physically hurt. And then kind of the dam broke and all the kids are talking at once and ultimately they get taken to the police station.
And they ultimately get separated. And in terms of these two children, they are interviewed separately. Clearly there had been some statement made somewhere along the line to some police officers, but no one ever adduced what those statement were and there is nothing in this record to indicate that somehow or other anything that was said by the girls at the police station or talked to any officers would have somehow or other poisoned things.
Clearly the statements that they made to the child interviewer are not spontaneous statements. They were brought there for the purpose of the interview. So I don't think anybody could possibly call those spontaneous. But, the whole thing came up in a not entirely spontaneous but somewhat spontaneous way. Once the mother asked the question, it appears pretty much that the dam burst.
While the court found the statements to Veile were not entirely spontaneous, no one factor is decisive. State v. Young, 62 Wn. App. at 902. The record also shows that G.N. and L.N. responded to questions that were neither suggestive nor leading, and they were not intimidated or afraid of speaking to Veile.
Romero and Wallin next argue that the circumstances surrounding the initial disclosures to their mother and later to Veile do not support the trial court's finding that the likelihood of G.N.'s and L.N.'s recollection being faulty was remote. The court found the possibility of either G.N. or L.N. having a faulty recollection was "remote in the extreme" because they spoke to Veile two days after the initial disclosure to their mother. In considering the circumstances surrounding the disclosures to C.N. and Veile, the court rejected the argument that the recollection of either G.N. or L.N. was inaccurate. The record supports the trial court's determination that the contemporaneous statements of G.N. and L.N. were reliable.
These are two little girls who were taken on what was supposed to be an outing to maybe have some pictures taken by a person who was supposed to be a friend, who introduced them to a person they never met. Although [L.N.] may actually have met Mr. Wallin once before. And they had these things happen to them. They were upset that night, as I have already indicated several times. Particularly, [G.N.]. And they told their mother first thing in the morning what it was that they maintained happened to them. . . .
To the extent that this specter is raised by the defense, because the mother talked to all the girls at once and then the girls were present at the police station, these children were essentially immediately taken to the police. Obviously, any parent is going to have to try to find out if there is anything even to take them for the police for. And once [L.N.] talked, everything started to come out, and it appears to me that the parents handled this situation about as well as any parents could handle the situation.
In terms of the police, I've already indicated there may have been some conversations at the police departments that all the girls were privy to, but I haven't heard anything specifically that, for lack of a better term, poisons the well or casts any doubt or question on whether each girls' rendition of what occurred is accurate or inaccurate. There is just no evidence to support any such notion.
Romero cites Trujillo v. State, 806 N.E.2d 317, 325 (Ind.Ct.App. 2004), to argue that Veile's lengthy interview with G.N. affected the reliability of G.N.'s statements. In Trujillo, the court addressed whether the "lengthy and stressful interviews or examinations preceding the statement may cast doubt on the reliability" of a child's statements to the police. Trujillo, 806 N.E.2d at 324-25 (quoting Pierce v. State, 677 N.E.2d 39, 44 (Ind.Ct.App. 1997)). The interview in Trujillo with the four-year-old child took place two days after her initial disclosures of molestation to her mother. Trujillo, 806 N.E.2d at 328. Because there was no evidence that the interview caused the child stress and the police asked nonleading questions, the court held that the trial court did not abuse its discretion in determining the statements were reliable. Trujillo, 806 N.E.2d at 328. Likewise, here, there is no evidence that the interview caused G.N. stress. To the contrary, the record shows that G.N. was relieved to have the opportunity to talk to Veile.
Wallin also argues that the trial court erred by admitting child hearsay statements that did not describe acts of sexual contact. RCW 9A.44.120 limits the admissibility of statements to those "made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, [or] describing any attempted act of sexual contact with or on the child by another." RCW 9A.44.010(2) defines "sexual contact" as "any touching of the sexual or other intimate parts of a person done for the purpose of gratifying sexual desire of either party or a third party."
The trial court ruled that the statements G.N. and L.N. made to C.N. and Veile were limited to those statements describing sexual contact on the child who made the statement. However, the court also ruled that some context was necessary and asked the parties to agree on the scope of the hearsay statements.
The parties agreed on the majority of statements. As to those hearsay statements, Wallin has waived any claim of error. State v. Sengxay, 80 Wn. App. 11, 15, 906 P.2d 368 (1995).
The only disagreement concerned G.N.'s statement to Veile that Romero told G.N. and L.N. to come sit on her stomach while she and Wallin were having sexual intercourse. Below, Wallin argued that the testimony was not admissible because it did not describe sexual contact. The trial court disagreed, and ruled that the statement described sexual contact under RCW 9A.44.120 because a "naked child straddling Ms. Romero, her anus and her vagina would be coming in contact with Ms. Romero" while she was having sexual intercourse. Because the record supports the trial court's determination that Romero's request would have resulted in sexual contact for purposes of gratifying sexual desire, the trial court did not abuse its discretion in admitting G.N.'s statement to Veile about Romero's request.
State v. Hancock, 46 Wn. App. 672, 677-78, 731 P.2d 1133 (1987) is distinguishable. In Hancock, the court held that the trial court erred by admitting a statement by child witness "B" about the defendant's sexual contact with another child because the statement did not describe any sexual contact " with or on B. Hancock, 46 Wn. App. at 678. Here, G.N.'s statements to Veile clearly describe sexual contact with G.N.
We conclude that the trial court did not abuse its discretion in finding that the Ryan factors were substantially met and admitting G.N.'s and L.N.'s out-of-court statements to their mother and Veile.
Challenges for Cause
Romero contends that the trial court violated her right to an unbiased jury and abused its discretion by denying her challenges for cause to Juror No. 1 and Juror No. 30. Romero argues the answers given by the jurors in response to questions about their experience with sexual abuse, demonstrate the jurors could not be impartial. Citing State v. Fire, 145 Wn.2d 152, 165, 34 P.3d 1218 (2001), Romero also argues that she was prejudiced because she was forced to use a preemptory challenge to excuse Juror No. 30 and could not challenge Juror No. 1, who was seated on the jury panel.
A criminal defendant has a constitutional right to be tried by a fair and impartial jury. U.S. Const. amend. VI; Wash. Const. art. I, § 22; State v. Davis, 141 Wn.2d 798, 824-25, 10 P.3d 977 (2000). Under RCW 4.44.170(2), a challenge for cause is based on:
the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging. . . .
The court can deny a challenge for cause if the court determines that the juror can set aside an expressed opinion or personal experience and try the case impartially based on the evidence at trial and the law as given by the court. RCW 4.44.190. We review the trial court's denial of a challenge for cause for manifest abuse of discretion. State v. Noltie, 116 Wn.2d 831, 838, 809 P.2d 190 (1991). The mere possibility of prejudice, as shown by a juror's discomfort about sexual abuse or concerns about impartiality, does not require the court to excuse a juror. Noltie, 116 Wn.2d at 839. "The trial court is in the best position to judge whether the juror's answers merely reflected honest caution based on her lack of prior judicial experience or whether they manifested a likelihood of actual bias." Noltie, 116 Wn.2d at 839-40.
After the jurors filled out written questionnaires, the court and the parties individually questioned each juror who indicated that he or she either had a personal or a family experience with sexual abuse. Juror No. 1 said that he had a brother who went to prison for sexually assaulting his stepdaughter. Nonetheless, Juror No. 1 told the court that:
I would like to think that I could be fair and open minded about whatever the charges were and the defendants and the information we received in the court. I would hope that I could be open minded. I don't think that I would be prejudiced at all by the situation.
Juror No. 1 also said that even though he believed sexual molestation "should be dealt with seriously" he would be able to be fair to both sides.
Romero challenged Juror No. 1 for cause. The trial court denied the challenge. The court pointed out that Juror No. 1 repeatedly acknowledged and recognized the difference between being accused of a crime and being found guilty in court and would keep an open mind. "It's clear to me that he is going to be able to follow the Court's Instructions and that the situation with his brother is not such that he is ineligible to be a juror."
The court also denied Romero's challenge for cause as to Juror No. 30. Juror No. 30 had been inappropriately touched by an uncle as a teenager, and her great uncle had molested his children. In the questionnaire, Juror No. 30 stated that she believed she could not be impartial. However, during questioning, Juror No. 30 said that after further reflection, she could be impartial. "I thought about it last night, all night, actually. And I understand that as a juror it's your job to listen to all the evidence and to weigh it out. And that I would have to just put my own experience aside and do that." However, Juror No. 30 also stated that she "probably would be a little worried" if she was on trial facing a juror with her "mindset." The trial court denied Romero's for cause challenge to Juror No. 30.
I watched this juror very closely. I didn't get the impression that
she was answering questions trying to be placed on the jury. I got the impression that she was trying very hard to answer questions truthfully. It was clear that she spent a lot of time thinking about this. It's true, as [Romero's attorney] pointed out, that yesterday she indicated she had some concerns. But she explained that in saying I didn't have much time to think about it and essentially if I had any question at all in my mind about it I thought I was better off to answer the question yes. But having thought about it all night, she believes that she can be fair.
I want to emphasize that I thought that the juror was a particularly thoughtful person who really, truly was doing what she could to answer the questions.
With regard to the question of well, you know, would you want a juror with your mindset sitting in judgment on you, [Romero's attorney] began the question by saying, well, this is a question that there may be no answer to. And it wasn't followed up with why is that, is that because of your situation that you have told us about or is that because you think you are a particularly insightful person who is going to be paying close attention to everything that is going on in this trial? I'm not satisfied that when she said she — she might have some concerns about that, I thought she was being honest. And I'm not sure that it triggers back to the abuse situation that she talked to at all.
We conclude that the court did not abuse its discretion in denying the challenges for cause as to Juror No. 1 and Juror No. 30. Each juror expressly told the court that he or she could be impartial and decide the case based on the evidence and the law. On this record, Romero cannot demonstrate that either Juror No. 1 or Juror No. 30 should have been excused for cause. State v. Gilcrist, 91 Wn.2d 603, 611, 590 P.2d 809 (1979) (no manifest abuse of discretion in denying challenges for cause after challenged jurors individually assured the court "they were impartial despite their experiences").
Admission of Photographs
Romero and Wallin argue that the court erred as a matter of law in admitting photographs of children's feet that were seized from Romero's computer under ER 404(b). Alternatively, Romero and Wallin contend the trial court abused its discretion in admitting the photographs because the danger of unfair prejudice substantially outweighed the probative value.
Before trial, the State argued that it was entitled to introduce photographs of children's feet that were recovered during the search of Wallin's apartment and Romero's apartment. The State argued that the photographs were admissible to corroborate the testimony of the child witnesses. Romero and Wallin objected to admission of the photographs under ER 404(b). While the court appears to have analyzed the admission of the photographs under ER 404(b), the court also ruled the evidence was admissible to corroborate the testimony of the girls.
ER 404(b) states that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
There is a difference between saying if a person did something before they must have done it again. And clearly that — 404(b) was the correct analysis, that would be impermissible. But it's different to say that on the issue of how these girls would have known that these people had such an interest, are these types of photographs admissible as corroboration? And it appears to me that that's the bottom line of what's going on here, is that the girls apparently have come forward with statements as to some events that they maintain happened. And upon searching the apartment . . . the authorities located materials that the prosecutor believes corroborates the girls' stories; i.e., how these girls at the ages of seven, nine and eleven, how they would have known that these people had any kind of an interest in feet. . . .
After E.N., G.N., and L.N. testified at trial, the State withdrew its motion to introduce the photographs of children's feet found at Wallin's apartment. However, the State moved to admit the photographs of children's feet that were recovered from Romero's computer to corroborate G.N.'s testimony that Romero was interested in "little feet," that she was making a book comprised of photographs of children feet, and that she asked G.N. if she could take photographs of her feet.
The court ruled that the photographs were admissible to corroborate G.N.'s testimony and the probative value of the evidence outweighed any prejudice.
I did specifically look at all of those and they are not inflammatory. They are just pictures of feet. There is nothing sexual about them, nothing posed about them, nothing abusive about them. They are just photographs of people's feet. . . . how would the children have known that there was an interest in feet on the part of Ms. Romero unless she had said something about it[?] So the fact that she has all these pictures of feet is in fact corroborative of the children's testimony that she said this. Any prejudice engendered by the photographs of the feet, really, looking at the photographs, is minimal, and the prejudicial value is overshadowed and outweighed by the probative effect that the pictures have. . . .
We uphold the trial court's admission of the photographs under State v. Petrich, 101 Wn.2d 566, 683 P.2d 173 (1984). In Petrich, the court held that corroborating evidence is admissible in child sex abuse cases because the credibility of the child is "an inevitable, central issue." Petrich, 101 Wn.2d at 575. Crimes against children generally put at issue the credibility of the complaining child witness, especially if the defendant denies the acts charged and the child asserts their commission. And an attack on the credibility of a child witness, however, slight, can justify corroborating evidence. Petrich, 101 Wn.2d at 576.
Here, there is no dispute that Romero and Wallin challenged G.N.'s credibility and that the photographs corroborated G.N.'s testimony. The court did not abuse its discretion in admitting the photographs and the record supports the trial court's determination that the probative value of the photographs outweighed any prejudice.
Ineffective Assistance of Counsel
Romero asserts that her attorney provided ineffective assistance of counsel by withdrawing the objection under Bruton to the testimony of Wallin's mother, Loydeen Wallin. Ineffective assistance of counsel is an issue of constitutional magnitude that can be raised for the first time on appeal. State v. Greiff, 141 Wn.2d 910, 924, 10 P.3d 390 (2000).
To prevail on a claim of ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice. State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). If a defendant fails to satisfy either part of the test, the court need not inquire further. State v. Hendrickson, 129 Wn.2d 61, 78, 917 P.2d 563 (1996). When reviewing a claim of ineffective assistance of counsel, there is a strong presumption that counsel's representation was effective and competent. State v. McNeal, 145 Wn.2d 352, 362, 37 P.3d 280 (2002). A claim of ineffective assistance cannot be based on conduct that can be fairly characterized as a legitimate trial strategy or tactics. McFarland, 127 Wn.2d at 335-36. The decision of whether to object to the admission of testimony is a "classic example of trial tactics." State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). Trial counsel is not ineffective if an objection to the admissibility of evidence would have failed. State v. Nichols, 161 Wn.2d 1, 14, 162 P.3d 1122 (2007).
Before trial, Romero filed a motion to exclude incriminating statements Wallin made to his family members under Bruton. At trial, the State argued that the statements Wallin made to his mother while Romero was present were admissible against her as adoptive admissions under ER 801(d)(2)(ii).
Under ER 801 (d)(2)(ii), a statement is not hearsay if it is offered against a party and is a "statement of which the party has manifested an adoption or belief of its truth
. . . ." A party-opponent may manifest adoption of a statement by words, gestures or complete silence. State v. Neslund, 50 Wn. App. 531, 550-51, 749 P.2d 725 (1998). Silence constitutes an adoptive admission if (1) the party-opponent heard the statement, (2) was able to respond, and (3) the circumstances were such that it is reasonable to conclude the party-opponent would have responded "had there been no intention to acquiesce." State v. Neslund, 50 Wn. App. at 551.
The trial court makes a threshold decision that a defendant made an adoptive admission. The jury ultimately decides the question as the trier of fact. Neslund, 50 Wn. App. at 551-52. The jury must determine whether in light of all the surrounding facts, "the defendant actually heard, understood, and acquiesced in the statement." Neslund, 50 Wn. App. at 551.
"Whether an accused has made an adoptive admission is thus a matter of conditional relevance to be determined ultimately by the jury." Neslund, 50 Wn. App. at 551-52.
In a hearing outside the presence of the jury, Loydeen Wallin testified that Wallin and Romero came to visit her at her apartment in the early part of August 2006. She said, "Basically, they told me that they had sex in front of three little girls," who were "eleven, nine, and seven." Loydeen testified that Wallin said they went to the lake and "one of the two girls wanted to go skinny dipping, so they went to the back part of the lake where there weren't very many people." Loydeen also testified that Wallin said that they took photographs after skinny dipping. Loydeen testified that at some point during the conversation Romero briefly stepped out of the room to go to the bathroom. Loydeen said that while Wallin was describing what had occurred, Romero was "very upset. She had been crying. She was very distraught about everything. She was worried that they were in a lot of trouble."
After Loydeen testified, Romero's attorney withdrew any objection under Bruton to Loydeen's testimony on the condition that the court gives a limiting instruction on adoptive admissions.
I may be withdrawing the Bruton objection, in agreement with [the prosecutor] about something else, Your Honor.
[The prosecutor] and I, between ourselves, were discussing where the Court might go on this issue and whether with a proper limiting instruction the admissions, which are not otherwise objectionable, could come in. Based on language that I put together for a limiting instruction, I'm not going to oppose the statements based on Bruton.
The court admitted Loydeen's testimony under ER 801(d)(2)(ii) and agreed to give Romero's limiting instruction to the jury.
Before Loydeen testified about what Wallin had told her, the court gave the jury the following instruction:
An "adoptive admission" may occur when a person is present when a statement is made and does not deny that statement under circumstances which would normally elicit a response or denial. Whether an adoptive admission has occurred is a question of fact for the jury to decide.
If a defendant makes a statement regarding him-or herself when a co-defendant is not present, the jury shall only consider the statement for purposes of ascertaining the innocence or guilt of the defendant who made the statement, not that of his or her co-defendant.
The court also gave a written instruction on adoptive admissions as part of the court's instructions to the jury.
The court also gave a written instruction on adoptive admissions as part of the court's instructions to the jury.
Because the decision to not object to the admission of Loydeen's and Wallin's testimony under ER 801(d)(2)(ii) is a classic example of trial tactics, and Romero has not overcome the strong presumption that her counsel's representation was effective, her claim of ineffective assistance of counsel fails.
CONCLUSION
The record supports the trial court's determination that ten-year-old G.N. and eight-year-old L.N. were competent to testify. The court did not abuse its discretion in admitting the child hearsay statements of G.N. and L.N., in denying Romero's challenges for cause as to Juror No. 1 and Juror No. 30 or in admitting photographs to corroborate G.N.'s testimony. We also conclude Romero cannot show ineffective assistance of counsel, and affirm.
We Concur: