Opinion
No. 63506-9-I.
August 2, 2010. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Snohomish County, No. 08-1-00892-9, Linda C. Krese, J., entered May 6, 2009.
Affirmed by unpublished opinion per Dwyer, C.J., concurred in by Becker and Cox, JJ.
Jesse Alderman appeals from the judgment entered on a jury's verdicts finding him guilty of two counts of child molestation in the first degree and one count of child rape in the first degree. He contends that he received ineffective assistance of counsel because his attorney did not object to the admission of several hearsay statements made by the victim. He also contends that there was insufficient evidence to convict him on at least one of the charged offenses. We affirm.
I
Alderman was charged with three counts of child molestation in the first degree and one count of rape of a child in the first degree after evidence arose that he had sexually abused his biological daughter, A.Z. When A.Z. was 10 years old, her mother, Jacqueline, discovered her journal. The journal contained an entry stating: "When I was four or five Jesse had sex with me. Ask Hannah about this." A.Z. admitted to writing the journal entry when she was eight or nine. Although A.Z. and her family were living in Kansas, her mother contacted Snohomish County authorities because they had been living in Washington when the alleged abuse occurred.
Jacqueline, A.Z.'s mother, is referred to by her first name throughout this opinion to protect the child's identity.
Hannah is one of A.Z.'s friends. A.Z. testified that she never talked with Hannah about Alderman because she thought Hannah would tell others.
When noticed by A.Z.'s mother, the journal entry had been crossed out but was still legible.
At the time of trial, A.Z. was 11 years old. During her trial testimony, A.Z. read her journal entry aloud and agreed that what she had written was true. She testified in relative detail about the sexual abuse committed against her. She described one of the times that Alderman had sex with her as occurring in the duplex where they had lived. First, she testified that Alderman told her to go upstairs to his room, get on the bed, and take off her clothing. Second, A.Z. testified that Alderman sexually abused her on another occasion, but in that instance he removed her "pants and panties" himself. Third, A.Z. testified to a particular instance where Alderman committed similar acts at his parent's house. She testified that, each time this sexual abuse occurred, Alderman would cover A.Z.'s face with a blanket and pillow, she would be lying on her back with her "legs dangling off" of the end of the bed, and he would spread her legs apart with his hands. Then, she would feel "[s]omething going in and out of my private," his body would be moving "[c]loser and farther to me," and this would hurt her. She Page 3 also testified generally that she thought that similar abuse had happened to her on numerous other occasions but she could not provide any particular estimate about the number of times.
A.Z. also testified that she had been examined by a nurse in Washington who "made sure I was okay" because "Jesse did something to me." On cross-examination, Alderman's attorney asked A.Z. several questions regarding how often she had talked with a facilitator from the prosecutor's office and also asked A.Z. about the discrepancy between her statements to a social worker in Kansas that the sexual abuse had not hurt and her statements to nurse Barb Haner and to the jury that the sexual abuse did hurt her. A.Z. explained that although she had not remembered during an early interview with a social worker what the abuse had felt like physically, she subsequently remembered that the abuse had hurt her. She testified that this difference was "[b]ecause sometimes I have a bad memory. Later on things come. Then I remember. . . . [a]fter I think about it sometimes."
The nurse who performed the Snohomish County examination.
Jacqueline also testified. She described her former relationship with Alderman, confirmed many of A.Z.'s descriptions of their former homes, and explained how she found A.Z.'s journal. She recounted A.Z.'s reactions when she had confronted A.Z. with the journal entry:
[S]he just hovered down, and I said, "It's okay, you are not in trouble by any means. Whatever happened is not your fault." And she's like "Okay." And I said, "Did it have to do with your private parts and his private parts?" She nodded, "Yes." And I didn't ask her anything further.
Barb Haner, the nurse practitioner who interviewed and examined A.Z., also testified at trial. Haner described her general examination practices and procedures. She testified that it helps to have information about the age of the alleged perpetrator and the type of contact that occurred between the patient and the alleged abuser because of the different type of health risks presented by different contacts. She testified that she informed A.Z. about different types of germs and asked A.Z. a variety of questions "to assess the risk of infection, injury, the presence of an acute or chronic disease, to make sure that they are developmentally appropriate."
Haner then detailed her physical examination of A.Z. Haner testified that A.Z. had a subclinical chronic yeast infection, general redness all over her genital area, and an unusually thickened hymen. Haner also recounted her specific conversation with A.Z., describing A.Z.'s statements. Haner testified that A.Z. identified Alderman as having sexually abused her. Haner explained that, by using drawings of two people, A.Z. indicated that Alderman had touched her genitals with his own genitals. Haner also testified that A.Z. expressed that she had not bled as a result of Alderman's touching, that nothing had come out of Alderman's genitals, that the touching had occurred more than once, and that "[w]hen it hurt, it hurt really bad."
Alderman did not object to any of the above-described testimony. When the State offered the journal entry for admission, Alderman's attorney did not object, stating that "[i]t's been talked about so much." The journal entry was admitted. Alderman's attorney argued in closing argument that A.Z.'s story was not believable: "So her story is more over time, the more it's told, the bigger it gets. Pretty soon it hurt. She never said that before."
The jury returned guilty verdicts on two counts of child molestation and one count of rape of a child but acquitted on one count of child molestation.
Represented by substitute counsel, Alderman moved for a new trial based in part on the lack of a child hearsay hearing to determine the admissibility of the statement made in the journal. At oral argument on the motion, Alderman's trial attorney testified. He explained that he had "formed the opinion" that A.Z.'s journal entry was not subject to RCW 9A.44.120 because, although he knew that A.Z. was under 10 years of age when she made the statement, "the statement was not perceived by another human when the child was under ten so the `statement' was not complete until the child was ten." He also testified that part of his trial strategy was to point out that A.Z.'s story changed over time. The trial court denied Alderman's motion on the basis that it was untimely.
Alderman appeals.
II
Alderman first contends that the trial court erred by not conducting a child hearsay hearing to determine the admissibility of A.Z.'s journal entry. Because Alderman did not object at trial, he has waived his right to directly challenge the lack of such a hearing.
Hearsay statements made by a child under the age of 10 may be deemed admissible if the trial court conducts a hearing to determine whether the statements are reliable. RCW 9A.44.120. Generally, a trial court's failure to comply with the hearing requirements of RCW 9A.44.120 constitutes error. State v. Leavitt, 111 Wn.2d 66, 71, 758 P.2d 982 (1988) (citingState v. Jackson, 46 Wn. App. 360, 369, 730 P.2d 1361 (1986)). However, "[a] party's failure to object at trial precludes appellate review unless the alleged error is `truly of constitutional magnitude.'" State v. Warren, 55 Wn. App. 645, 649-50, 779 P.2d 1159 (1989) (quoting State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). InLeavitt, our Supreme Court held that where the child declarant and the hearsay recipients testified at trial and were subject to cross-examination, no constitutional confrontation or due process concerns were implicated by the omission of the hearing. 111 Wn.2d at 71-72. Consequently, the defendant's failure to raise a timely objection precluded appellate review.Leavitt, 111 Wn.2d at 71-72; accord Warren, 55 Wn. App. at 650.
Here, Alderman's attorney did not object to the absence of a hearing and did not object to the admission of the journal entry or to the testimony repeating the hearsay statements. A.Z. testified and was subject to full cross-examination. Because no manifest constitutional right is implicated by the failure to hold a hearing in these circumstances, Alderman's lack of objection precludes direct appellate review.
Alderman also contends that the State's failure to give him sufficient notice of its intent to use the child hearsay statement contained within the journal entry, as required by RCW 9A.44.120, is an issue of constitutional magnitude because it violated his right to a fair trial. However, Alderman does not cite to any relevant authority in support of this contention or otherwise develop this argument. Accordingly, we do not consider it. State v. Modica, 136 Wn. App. 434, 450 n. 9, 149 P.3d 446 (2006), aff'd on other grounds, 164 Wn.2d 83, 186 P.3d 1062 (2008).
III
Alderman next contends that he received constitutionally ineffective assistance of counsel because his attorney did not object to the admission of several hearsay statements made by A.Z. We disagree.
To establish ineffective assistance of counsel, a defendant must show both deficient performance and resulting prejudice.Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997). A strong presumption of effective assistance exists, and the defendant bears the burden of demonstrating an absence of a strategic basis for the challenged conduct. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). "To show such error, it must be established that the assistance rendered by counsel was constitutionally deficient in that `counsel made errors so serious that counsel was not functioning as `counsel' guaranteed the defendant by the Sixth Amendment.'" Nix v. Whiteside, 475 U.S. 157, 164-65, 106 S. Ct. 988, 89 L. Ed. 2d. 123 (1986) (quoting Strickland, 466 U.S. at 687). Prejudice occurs if there is a reasonable probability that the outcome of the proceedings would have been different had counsel's performance not been deficient. McFarland, 127 Wn.2d at 335. Failure to establish either prong is fatal to an ineffective assistance claim. Strickland, 466 U.S. at 697.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. ER 801(c). A statement includes oral assertions, written assertions, and nonverbal conduct intended as an assertion. ER 801(a). Where the alleged hearsay statements are admissible, defense counsel's failure to object on the basis of hearsay will not constitute deficient performance. State v. Alvarado, 89 Wn. App. 543, 553, 949 P.2d 831 (1998). "The decision of when or whether to object is a classic example of trial tactics. Only in egregious circumstances, on testimony central to the State's case, will the failure to object constitute incompetence of counsel justifying reversal."State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989).
Alderman first avers that his attorney rendered deficient performance by not objecting either to the lack of a child hearsay hearing to determine the admissibility of A.Z.'s journal entry or to the actual admission of the journal entry. A party seeking to admit otherwise inadmissible hearsay statements that were made by a child under the age of 10 may obtain admission pursuant to the child hearsay statute. RCW 9A.44.120.
The statute provides:
A statement made by a child when under the age of ten describing any act of sexual contact performed with or on the child by another, describing any attempted act of sexual contact with or on the child by another, or describing any act of physical abuse of the child by another that results in substantial bodily harm as defined by RCW 9A.04.110, not otherwise admissible by statute or court rule, is admissible in evidence in dependency proceedings under Title 13 RCW and criminal proceedings, including juvenile offense adjudications, in the courts of the state of Washington if:
(1) The court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide sufficient indicia of reliability; and
(2) The child either:
(a) Testifies at the proceedings; or
(b) Is unavailable as a witness: PROVIDED, That when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.
A statement may not be admitted under this section unless the proponent of the statement makes known to the adverse party his or her intention to offer the statement and the particulars of the statement sufficiently in advance of the proceedings to provide the adverse party with a fair opportunity to prepare to meet the statement.
RCW 9A.44.120. Our Supreme Court, in State v. Ryan, 103 Wn.2d 165, 691 P.2d 197 (1984), identified the following factors for assessing the reliability of child hearsay statements: (1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness; (6) the statement contains no express assertion about past fact; (7) cross-examination could not show the declarant's lack of knowledge; (8) the possibility of the declarant's faulty recollection is remote; and (9) the circumstances surrounding the statement are such that there is no reason to suppose the declarant misrepresented defendant's involvement. 103 Wn.2d at 175-76 (quoting State v. Parris, 98 Wn.2d 140, 146, 654 P.2d 77 (1982); Dutton v. Evans, 400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)).
Alderman contends that there can never be a legitimate trial strategy for waiving a child hearsay hearing, citing toWarren, in which we stated that [w]e cannot perceive a legitimate trial strategy in counsel's apparent decision to waive a reliability hearing." 55 Wn. App. at 652; see also State v. Leavitt, 49 Wn. App. 348, 359, 743 P.2d 270 (1987), aff'd, 111 Wn.2d 66, 758 P.2d 982 (1998). However, Warren does not stand for the proposition that not insisting on a reliability hearing can never be a legitimate trial strategy.
Here, Alderman's attorney had a legitimate trial strategy in not demanding a child hearsay hearing because he intended to utilize the contents of the journal entry at trial in order to show the progression of A.Z.'s descriptions of the sexual abuse from extremely general to relatively detailed.
Moreover, even had no strategic reason been present, defense counsel's performance has not been shown to be deficient. The question of whether a child hearsay hearing was appropriate under the circumstances presented herein was, and remains, an unresolved question of law. No Washington decision resolves the question of whether it is the age of the child at the time the statement is made, as opposed to the child's age at the time the statement is communicated to another person, that is dispositive. Here, A.Z. was less than 10 years old when the statement was made but had turned 10 years old by the time that the statement was first communicated to another person. Alderman's attorney believed that the journal entry was not child hearsay, within the scope of RCW 9A.44.120, because it was not communicated until after A.Z. turned 10. Even if Alderman's attorney resolved the issue of the relevant age of A.Z. incorrectly, a decision we do not reach, wrongly analyzing an unresolved question of law does not constitute deficient performance. Such an analysis does not fall below "an objective standard of reasonableness." McFarland, 127 Wn.2d at 334.
Alderman also contends that his attorney's performance was deficient because his attorney did not object to the admission of testimony regarding A.Z.'s nonverbal response to Jacqueline's questions. However, a statement is not hearsay if "the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is . . . consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." ER 801(d)(1)(ii).
During direct examination, A.Z. testified that she told her mother that the journal entry was true but nothing more specific was stated about Jacqueline's questions. The defense then implied on cross-examination that A.Z. fabricated much of her testimony regarding the details of the sexual assault after speaking to numerous people. Subsequently, the State elicited Jacqueline's testimony regarding A.Z.'s nonverbal statement acknowledging that the allegations involved Alderman's and A.Z.'s "privates." A.Z.'s nonverbal responses to Jacqueline's questions were assertions made prior to speaking with anyone about the sexual abuse and, thus, were admissible as prior consistent statements. Alderman's attorney's performance cannot be held deficient for failing to object to admissible testimony. Alvarado, 89 Wn. App. at 553.
Alderman argues that Jacqueline's testimony cannot qualify as a prior consistent statement because the State had discussed it in opening statement. However, the State's opening did not describe the detail that Jacqueline's question asked specifically about "privates."
Alderman's final contention that his attorney's performance was deficient is predicated on his attorney having not objected to the admission of A.Z.'s statements to nurse Haner. However, hearsay statements are admissible when they were "made for purposes of medical diagnosis or treatment." ER 803(a)(4). "There is a generally accepted two-part test to aid in deciding whether statements proposed for admission under ER 803(a)(4) are reliable: (1) was the declarant's apparent motive consistent with receiving medical care; and (2) was it reasonable for the physician to rely on the information in diagnosis or treatment."State v. Lopez, 95 Wn. App. 842, 849, 980 P.2d 224 (1999). Compare State v. Kilgore, 107 Wn. App. 160, 182-184, 26 P.3d 308 (2001) (child's statements made to a nurse practitioner who had examined the child after the child alleged she had been raped were admissible), aff'd on other grounds, 147 Wn.2d 288, 53 P.3d 974 (2002), with Lopez, 95 Wn. App. at 850 (children's statements made to a forensic interviewer were inadmissible because nothing in the record indicated either that the children understood that their statements would further diagnosis or treatment or that the children's interviews were pertinent to diagnosis or treatment).
ER 803(a)(4) provides:
The following are not excluded by the hearsay rule. . . . Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Here, most of A.Z.'s statements to nurse Haner were admissible under the ER 803(a)(4) exception. A.Z. knew that she was at a doctor's office to be examined to determine whether she was healthy. Thus, A.Z.'s apparent motive was consistent with receiving medical care. Nurse Haner used the information collected during the examination and interview to evaluate whether A.Z. had any medical issues. Haner demonstrated that it was reasonable for her to rely on the child's statements in diagnosis and treatment. Because A.Z.'s statements to nurse Haner would have been properly admissible, Alderman's counsel's decision not to object cannot constitute deficient performance.Alvarado, 89 Wn. App. at 553.
However, even were we to assume deficient performance, Alderman cannot demonstrate that he suffered any resulting prejudice from the admission of any of the challenged hearsay statements. A.Z.'s detailed trial testimony more than mirrored the challenged hearsay statements; she gave an account of Alderman's sexual contact with her that was much more explicit than that set forth in her statements in her journal, to her mother, and to nurse Haner. It is not reasonably probable that the outcome of the trial would have been different had Alderman's attorney timely objected to the admission of the statements to nurse Haner and had the statements been ruled inadmissible.See McFarland, 127 Wn.2d at 335; Leavitt, 111 Wn.2d at 73. Alderman has not demonstrated that he was prejudiced by the allegedly ineffective assistance provided by his trial attorney.
IV
Alderman finally contends that the evidence was insufficient to support his three convictions. We disagree.
"Evidence is sufficient to support a conviction if, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."State v. Hayes, 81 Wn. App. 425, 430, 914 P.2d 788 (1996) (citing State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). We must defer to the trier of fact "to resolve conflicts in testimony, weigh evidence and draw reasonable inferences therefrom." State v. Gerber, 28 Wn. App. 214, 216, 622 P.2d 888 (1981). Thus, "all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
A.Z. described at least three separate instances where Alderman sexually abused her. First, there was specific testimony that at least one act of sexual abuse occurred at the duplex where Alderman ordered A.Z. to take off her own clothing. Second, there was also specific testimony that at least one other act of sexual abuse occurred at the duplex where Alderman took A.Z.'s clothing off of her. Third, there was specific testimony that at least one act of sexual abuse occurred at Alderman's parents' house. A.Z.'s other testimony only generally alleged that multiple other instances of sexual abuse occurred that were substantially similar to the three specifically described incidents.
The jury found Alderman guilty of only three of the four charged counts and acquitted him of the fourth count. A.Z.'s testimony specifically describing three separate instances constitutes substantial evidence supporting Alderman's convictions.
Affirmed.
We concur: