Opinion
No. 28886-2-III.
January 13, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Benton County, No. 09-8-00352-1, Lonna K. Malone-Purtle, J. Pro Tem., entered March 17, 2010.
Affirmed by unpublished opinion per Brown, J., concurred in by Korsmo, A.C.J., and Siddoway, J.
Donald J. York appeals the juvenile court disposition order finding he committed first degree animal cruelty with sexual motivation. He contends his polygraph test answers leading to derivative admissions after Miranda warnings were coerced and should have been suppressed by the juvenile court. Under settled law, we affirm.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
FACTS
In July 2008, 15-year-old Donald J. York pled guilty to one count of voyeurism. He received a Special Sex Offender Disposition Alternative (SSODA) sentence. A condition of his sentence required Mr. York to attend counseling with certain treatment providers, and to submit to "polygraphs for treatment and supervision purposes." Clerk's Papers (CP) at 32.
In February 2009, Mr. York took a polygraph examination. He was required to sign a standard "Benton-Franklin County Juvenile Justice Center Polygraph Informed Consent" form, partly providing:
It is my understanding that a polygraph exam is used as a treatment tool to help identify my sexual offense history, encourage me to take responsibility for my offense(s), and to help monitor and supervise my day-to-day behavior specific to my treatment plan.
I understand that during the examination, I must be as honest as possible. It is important that I disclose all information. I also understand that I may limit what I say in order to protect myself from new charges or civil commitment.
I have been informed that the Washington State Law, RCW 26.44.030, requires that any previously unreported disclosure of abuse and neglect must be reported to Protective Services and/or the appropriate law enforcement agencies. Benton-Franklin Counties Juvenile Justice Center policy further requires that any previously unreported disclosures of violent crimes must be reported to law enforcement based upon what I say, the seriousness of the crime, as well as the statute of limitations. I understand that failing to submit to the polygraph testing, when determined appropriate to be tested by the therapist, JPC, and examiner, will result in a recommendation to have the SSODA option revoked.
CP at 13.
Later that month, Tim Markham, Mr. York's community placement supervisor, contacted the Richland Police Department regarding the results of the polygraph examination of Mr. York. Mr. York had reported to the polygraph examiner that he had sexual intercourse with two family pets, a labrador and a pit bull, on approximately 25 different occasions. Mr. York stated that he had sexual intercourse with the pit bull as recently as one month earlier.
Detective Roy Shepherd of the Richland Police Department contacted Mr. York regarding this matter in March 2009. Detective Shepherd read Mr. York a Miranda warning for juveniles. Mr. York stated that he understood those rights and was willing to speak with Detective Shepherd. Mr. York admitted having sexual intercourse with dogs on approximately 25 occasions, the last incident occurring in January 2009. Mr. York signed a written statement as well.
Detective Shepherd contacted Mr. York's brother, Robert, who stated that he had walked into Mr. York's bedroom the previous summer and observed him under the covers. When Robert pulled back the covers, he observed his brother with his pants down and their pit bull. Robert stated that his brother had an erection and there was a very bad smell in the room.
The State charged Mr. York with one count of animal cruelty in the first degree with a sexual motive allegation.
Before trial, Mr. York moved to suppress his statements made to Detective Shepherd. Mr. York unsuccessfully argued he was never informed that his statements during the polygraph could be used against him to file new charges unrelated to a violent crime or abuse and neglect. The court found the questioning by the polygraph examiner was not coercive and Mr. York's implied consent form placed him on notice that the police may be contacted based on the statements given during the examination. In addition, the court found Mr. York received his Miranda warnings prior to making any statements to Detective Shepherd making those statements voluntary. Finding the facts similar, the court followed State v. Dods, 87 Wn. App. 312, 941 P.2d 1116 (1997).
Further, Mr. York unsuccessfully moved to dismiss based upon corpus delicti grounds, arguing the State failed to present evidence of the crime independent of Mr. York's statements. The court found Robert's observations detailed above, provided sufficient independent evidence to establish a prima facie case of animal cruelty in the first degree with sexual motivation.
At trial in February 2010, the State presented three witnesses: Detective Roy Shepherd, Mr. York's brother, Robert, and an expert witness, veterinarian Dr. Sabina Gerds-Grogan. Detective Shepherd related what Mr. York had told him in the interview, and added that the dog had been sent away to Portland. Robert testified about his observations of Mr. York in the bedroom and the bad smell he encountered, calling it "musty." Report of Proceedings (Feb. 26, 2010) (RP) at 41. Dr. Gerds-Grogan testified that when a canine is in a stressful situation such as sexual abuse, it is common for them to express their anal glands, releasing a horrible smell. Dr. Gerds-Grogan testified that although the smell is distinct and can't be directly related to another smell, it could be described as "musty." RP (Feb. 26, 2010) at 56.
The court found Mr. York guilty of animal cruelty in the first degree with sexual motivation. Mr. York appeals.
ANALYSIS
The issue is whether the trial court erred in denying Mr. York's motion to suppress his statements to Detective Shepherd stemming from his polygraph examination. Mr. York contends his polygraph statements were coerced because the examination was court ordered. Further, he contends the informed consent form failed to put him on notice that his statements during the examination could result in criminal charges for other than abuse, neglect, or violent crimes.
We review a trial court's findings of fact for substantial evidence. State v. Broadaway, 133 Wn.2d 118, 129-31, 942 P.2d 363 (1997). If there is substantial evidence that a confession was voluntary, that determination will not be altered on appeal. Id. at 131. Coercion is the key. Id. at 132.
Polygraph testing may be ordered to monitor compliance with sex offender treatment or other conditions of the sentence. State v. Combs, 102 Wn. App. 949, 952, 10 P.3d 1101 (2000). Testing must be limited to topics related to a defendant's crime, but the scope of polygraph testing can be implicitly limited by the context of a community placement order. See State v. Riles, 86 Wn. App. 10, 16-17, 936 P.2d 11 (1997). Polygraph testing may not be utilized "as a fishing expedition to discover evidence of other crimes, past or present." Combs, 102 Wn. App. at 953. A therapist or probation officer may not order polygraph testing for impermissible purposes. Riles, 86 Wn. App at 10. Polygraph testimony is generally inadmissible at trial. State v. Renfro, 96 Wn.2d 902, 905, 639 P.2d 737 (1982).
Here, polygraph testing was ordered to monitor Mr. York's compliance with sex offender treatment requirements and other conditions of supervision. Nothing shows the polygraph administered in February 2009 was ordered for any other purpose beyond those objectives. During this permissible use of polygraph testing, Mr. York voluntarily disclosed that he had repeatedly engaged in sexual intercourse with dogs, a topic certainly relevant to his successful participation in sex offender treatment.
Mr. York suggests he was not informed of the consequences of his statements to the polygraph examiner. And, Mr. York seeks to limit the use of his statements during the polygraph examination for new charges solely to abuse, neglect, or violent crimes. However, the form first provides the respondent with a general warning that he may limit his disclosure to avoid implicating himself in undisclosed criminal matters. The form then gives examples of disclosures that are required by law or county policy to be reported to law enforcement. Mr. York fails to read the form together.
Mr. York seeks special treatment as a juvenile. But under RCW 13.40.140(8), juveniles have the same rights as adults; they are not afforded more or less rights against self-incrimination.
Mr. York further argues that being honest in order to get treatment puts him in a no-win situation, because it puts him in risk of criminal charges. While telling the truth can lead to criminal charges that does not make truth seeking coercive, like force, threats, or promises.
Next, Mr. York disputes the trial court's reliance on Dods, 87 Wn. App. 312. In Dods, the defendant was already a registered sex offender when he pleaded guilty to public indecency. Id. at 313. As a condition of his sentence, he was ordered to take a polygraph and plethysmograph testing, as directed by his therapist. Id. at 313-14. While submitting to a polygraph test, the defendant informed the polygraph administrator that he had sexual contact with a minor. Id. at 314. The polygraph administrator informed the defendant's community corrections officer (CCO) of the admissions. Id. at 315. The CCO then Mirandized the defendant, who waived his rights and made incriminating statements regarding the incident discussed in the polygraph test. Id. The defendant was subsequently charged with attempted child molestation in the first degree. Id. The trial court admitted the defendant's statements to his CCO, over objection, and the defendant was found guilty. Id. at 315-16. It was decided in Dods that the CCO's testimony was not fruit of the poisonous tree (the tree being the defendant's statements to the polygraph administrator). Id. at 320. The court concluded that the defendant's statements to his CCO were made after he was properly Mirandized and then knowingly, voluntarily, and intelligently waived his rights. Id. at 319. The facts here are like those in Dods, and we find no fault with the trial court's reasoning.
Lastly, Mr. York challenges the corpus delicti. We agree with the State's response in that its independent corroborative evidence from Robert need not establish the corpus delicti beyond a reasonable doubt, or even by a preponderance of the evidence; rather, such evidence is sufficient if it prima facie establishes the corpus delicti. State v. Baxter, 134 Wn. App. 587, 596, 141 P.3d 92 (2006). The independent evidence need only support a logical and reasonable inference of criminal activity. State v. Whalen, 131 Wn. App. 58, 63, 126 P.3d 55 (2005). If that evidence "`supports reasonable and logical inferences of both criminal agency and noncriminal cause, it is insufficient to corroborate a defendant's admission of guilt.'" State v. Brockob, 159 Wn.2d 311, 329, 150 P.3d 59 (2006) (quoting State v. Lung, 70 Wn.2d 365, 372, 423 P.2d 72 (1967)). In sum, Robert's testimony set out in the facts amply corroborates Mr. York's confession.
Affirmed.
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.
KORSMO, A.C.J. and SIDDOWAY, J., concur.