|
DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41027-3 |
| Title of Case: |
State Of Washington, Respondent V Clayton T. Robinson, Appellant |
| File Date: |
01/31/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Lewis County Superior Court |
| Docket No: | 09-1-00213-9 |
| Judgment or order under review |
| Date filed: | 08/02/2010 |
| Judge signing: | Honorable Nelson Hunt |
JUDGES
------
| Authored by | Christine Quinn-Brintnall |
| Concurring: | David H. Armstrong |
| J. Robin Hunt |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | Jordan Broome Mccabe |
| | McCabe Law Office |
| | Po Box 46668 |
| | Seattle, WA, 98146-0668 |
Counsel for Respondent(s) |
| | Sara I Beigh |
| | Lewis County Prosecutors Office |
| | 345 W Main St Fl 2 |
| | Chehalis, WA, 98532-4802 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 41027-3-II
Respondent,
v.
CLAYTON TROY ROBINSON, UNPUBLISHED OPINION
Appellant.
Quinn-Brintnall, J. -- Clayton T. Robinson appeals his convictions of two counts of first
degree child molestation1 and one count of attempted first degree child molestation,2 arguing that
the trial court erred in finding the child victim competent to testify and in admitting her hearsay
statements. Robinson also challenges the trial court's decisions to allow defense counsel to
withdraw and to allow a supplemental child hearsay hearing. Finally, Robinson challenges the
sufficiency of the evidence, the State's closing argument, and the calculation of his offender score,
and he alleges that cumulative error denied him a fair trial. Finding no error, we affirm.
1 RCW 9A.44.083.
2 RCW 9A.44.083; RCW 9A.28.020.
No. 41027-3-II
FACTS
Following disclosures by four-year-old L.R.H., the State charged Robinson, her great
uncle, with first degree child molestation (counts I and III) and attempted first degree child
molestation (count II). The State alleged that counts I and II occurred between December 1 and
December 25, 2008, and that count III occurred between December 1 and December 31, 2007.
L.R.H.'s birth date is March 16, 2004. Her mother, Lujuane Robinson, was the daughter of
Robinson's sister, Debbie Robinson. In 2007 and 2008, they all lived together in the home of
L.R.H.'s great-grandmother, Rosealice Robinson.3
Competency and Child Hearsay Hearing
The trial court held a competency and child hearsay hearing on October 16 and 28, 2009.
Child Protective Services (CPS) Investigator Jeffrey Copeland testified that he and Winlock
Police Chief Terry Williams went to L.R.H.'s house in response to a telephone call from an
unidentified family member in late December 2008. The purpose of Copeland's visit was to check
on L.R.H.'s welfare and interview her for possible sexual abuse. During his interview with
L.R.H., she pointed to her groin when asked where she was touched and said the touching
happened on Christmas 2008 and around Christmas 2007. A recording of the interview revealed
that L.R.H. said Robinson touched her "down there" inside her clothes. Ex. 3, at 11. The
touching happened before Christmas, two days in a row, and last year as well, a few days after
Christmas.
Lujuane testified that her mother Debbie told her late on Christmas Day 2008 that she
needed to talk to her daughter. When she asked L.R.H. what was wrong, the child said that
3 We use the first names of Robinson's family members for clarity.
2
No. 41027-3-II
Robinson had touched her private part that day and pointed toward her crotch. L.R.H. also said
Robinson had given her some lemonade to drink. Lujuane added that before the disclosure,
L.R.H. and Robinson played together frequently in Robinson's bedroom.
As L.R.H. took the witness stand, she volunteered that Robinson had touched her in the
wrong spot. She told the court her whole name (while transposing her middle and last names),
correctly spelled her first name, and accurately described her extended family until she said she
has 10 sisters. (L.R.H. has one younger brother and no sisters.) She did not remember how long
she had been living in a Centralia apartment, but she knew she had moved there recently from
Rosealice's home in Winlock. After several attempts, she said her birthday was March 16, but she
could not remember the year. She described her school schedule, named her teacher, and
explained why recess was her favorite thing about kindergarten. She also described, in
considerable detail, a game she had recently received. She then described a lie as being when
"you don't tell the truth" and gave an accurate example of a lie. Report of Proceedings (RP)
(Oct. 16, 2009) at 38. She also correctly identified several of the prosecutor's statements as lies.
She explained that telling a lie is bad and telling the truth is good and that she gets into trouble if
she tells lies.
L.R.H. said that Robinson had made her feel bad and that he had touched her in the wrong
spot. When asked to elaborate, she said she did not know what had happened, but she
remembered talking to Copeland when he came to her great-grandmother's house. She also
remembered that Chief Williams had been with Copeland when he "came to my house the other
night." RP (Oct. 16, 2009) at 45-46. She said she told Copeland what she had told the judge
when she first came into court and that she told her mother and grandmother the same thing. She
3
No. 41027-3-II
also said that her great-grandmother, Rosealice, had told her not to tell the judge. She pointed to
the area where Robinson had touched her but would not name it, and she held up three fingers
when asked how often he touched where she goes to the bathroom. She said it happened on
"Christmas night and the other Christmas night." RP (Oct. 16, 2009) at 50. When asked if she
remembered how old she was, she replied, "I was four and then on that night I was like three or."
RP (Oct. 16, 2009) at 50. She nodded when she said she had seen parts on Robinson like those
of her little brother. She remembered getting a checkup "at that child support doctor" and said
she told the truth then because she did not want to get into trouble. RP (Oct. 16, 2009) at 53.
She did not know whether she told the doctor where Robinson touched her, and she denied
pointing to the area where she was touched.
On cross-examination, she said her mother had told her she has 10 sisters and that her
mother was telling the truth. She nodded her head at most of the remaining questions from
defense counsel, including whether she had talked to Copeland earlier in the week. She answered
"no" when asked whether she told counsel earlier that she could not remember or did not know
what she did not like about Robinson.
The court then questioned L.R.H. When asked how she communicated with her mother,
who is deaf, L.R.H. said she uses sign language, but she could not give the court an example. She
nodded when asked if she told her mother about the touching, and she said she was telling the
truth at the time.
Chief Williams testified that when he went to L.R.H.'s house with Copeland to investigate
possible child abuse, L.R.H. was playful at first but became scared and withdrawn in describing
the allegations. Nancy Young, who interviewed and examined L.R.H. a few weeks later at
4
No. 41027-3-II
Providence St. Peter's Hospital Sexual Assault Clinic, also testified, and the State played a
recording of her interview. L.R.H. told Young that Robinson touched her in the wrong place on
Christmas night and a long time ago, too, when she was three years old. When asked if she
remembered that time or if someone told her about it, she said she remembered. She said that
Robinson told her not to tell; that it hurt like someone had pinched her when he touched her; and
that she saw Robinson's private part, which he wanted her to touch. She also saw slime come out
of Robinson's penis on Christmas night. L.R.H. added that her private parts hurt. Young
testified that she found "considerable redness" when she examined the child. RP (Oct. 28, 2009)
at 84.
Court-appointed investigator James Armstrong testified that he attended defense counsel's
interview of L.R.H. L.R.H. told counsel she did not like Robinson and that she had moved out of
her great-grandmother's home because he touched her crotch. She did not remember what
happened otherwise. On cross-examination, Armstrong admitted that counsel never asked L.R.H.
about being touched in her private parts or crotch.
Robinson testified that he lived at Rosealice's house during Christmas 2007 and 2008. He
also admitted that he had five prior burglary convictions in Texas and Washington.
The trial court ruled that L.R.H. was competent to testify, and it found her hearsay
statements admissible as long as she testified meaningfully. If she could not so testify, the
statements would not be admitted because they lacked corroboration. The court also found that
her hearsay statements to Lujuane, Young, Williams, and Copeland were nontestimonial. The
court entered findings of fact and conclusions of law in support of these determinations on
January 5, 2010.
5
No. 41027-3-II
Withdrawal of Counsel
A new prosecutor took over Robinson's case in January 2010 and supplemented the
witness list with three additional witnesses, two of whom worked for Cascade Mental Health.
This supplementation was based on new reports that had come out at the end of December 2009,
as well as recent disclosures from L.R.H. Defense counsel Kenneth Johnson then moved to
withdraw because of a conflict of interest. Johnson explained that he has been on the board of
Cascade Mental Health since 1980 and could not in good conscience effectively represent
Robinson given the State's decision to call Cascade Mental Health employees to testify. Johnson
said Robinson understood and would waive his speedy trial rights. The trial court granted the
motion to withdraw and appointed a new public defender.
Supplemental Child Hearsay Hearing
The State then moved for a supplemental child hearsay hearing in which the three new
witnesses and Lujuane would testify to additional information concerning L.R.H. as well as new
disclosures she had made. With this hearing, the State sought to provide corroboration so
L.R.H.'s hearsay statements would be admissible even if she did not testify meaningfully. The
State also sought to introduce more testimony from L.R.H. When initially informed of the State's
plan, the newly-appointed defense attorney observed that such a hearing would give him time to
interview witnesses and prepare for a new omnibus hearing. At the formal hearing on the motion,
defense counsel did not object to a supplemental hearing concerning new disclosures since the
initial hearing, but he did object to giving the State a second chance to question L.R.H. and
"revamp what they're trying to do." RP (Jan. 26, 2010) at 132. The court questioned the
strategy of recalling L.R.H. but allowed a supplemental hearing concerning the new information.
6
No. 41027-3-II
At that hearing, Lujuane testified that her friend, Kaye Austin, revealed in January 2010
that L.R.H. had said she watched an inappropriate movie with Robinson about massage. When
Lujuane asked her daughter about it, L.R.H. said that she had massaged Robinson's private area
at his direction while they watched a "dirty" movie. RP (Mar. 19, 2010) at 144. Austin then
testified that L.R.H. said in January 2010 that Robinson made her watch inappropriate movies and
touch his "thing." RP (Mar. 19, 2010) at 152. Austin added that when she and L.R.H. went to
the grocery store in October 2008, L.R.H. pointed toward the alcohol section and identified a
drink Robinson had given her. That same month, L.R.H. told Austin that Robinson had touched
her "pink thingy." RP (Mar. 19, 2010) at 151.
Russell Funk, who did an intake evaluation of L.R.H. at Cascade Mental Health in 2009,
testified that he had diagnosed her with post-traumatic stress disorder (PTSD), which sexual
abuse can cause. Kari Tjersland, who was counseling L.R.H. at Cascade Mental Health, agreed
with that diagnosis and added that L.R.H. had said she is afraid of Robinson. L.R.H. also told
Tjersland that she could not forget that Robinson had told her to "keep it a secret." RP (Mar. 19,
2010) at 169. Tjersland further testified that L.R.H. told her Robinson said bad things and made
her a lemon drink she did not like. L.R.H. did not testify at the supplemental hearing.
When the State asked the trial court to reconsider its ruling that L.R.H.'s hearsay was not
admissible unless she testified meaningfully because of insufficient corroboration, defense counsel
objected, arguing that the State had not timely filed or noted a motion to reconsider. The court
responded that the State's use of the word "reconsider" was technically incorrect; the State was
simply offering supplemental testimony that it hoped would provide sufficient corroboration. The
State agreed, and defense counsel said he understood.
7
No. 41027-3-II
The court found L.R.H.'s statements to her mother and Austin reliable and admissible but
uncorroborated, and it ruled that the statements would not be admitted unless L.R.H. testified
meaningfully. The court also concluded that these statements were nontestimonial. The court
questioned the reliability of L.R.H.'s statements to Tjersland because they were not spontaneous,
and it ruled that any such statements pertaining to sexual contact by Robinson were inadmissible
under the child victim hearsay statute, RCW 9A.44.120. The court added, however, that the
State could seek to admit L.R.H.'s statements to Tjersland as statements made for the purpose of
medical diagnosis or treatment under ER 803(a)(4).
Trial Testimony and Closing Argument
At trial, six-year-old L.R.H. testified that Robinson did bad touching with her one time.
The touching was below her waist, in the area her underpants covered, but not under her clothing.
Robinson told her not to tell, but she told her grandmother and then her mother. L.R.H. testified
that the touching happened the same day she told them about it, which was Christmas. She
denied that any touching occurred before that day or on any other Christmas. She remembered
telling a police officer that Robinson touched her, but she could not remember what she told the
doctor in Olympia. She did remember watching a "grownup" movie with Robinson and said he
gave her a lemonade drink before Christmas that made her feel "[i]cky." 1 RP at 42, 45. She said
she told Tjersland about Robinson's bad touching and added that she told Tjersland, the Olympia
doctor, the police, and her mother the truth about Robinson.
The defense cross-examined her about the layout of her great-grandmother's house and
where her other family members were when she was in Robinson's room. She recalled playing
Monopoly with him and said the door was closed when she was in Robinson's room. She denied
8
No. 41027-3-II
making up information when she had problems with her memory. Defense counsel did not ask her
directly about any touching but asked on recross whether the people L.R.H. had talked to had
helped her with her testimony. When she replied affirmatively, the State asked whether her
comments about bad touching and Robinson were the truth, and she said, "Yeah." 1 RP at 56.
When asked whether she was making any part of the touching story up, she said, "No." 1 RP at
56.
The trial court ruled that L.R.H. had testified meaningfully about the Christmas 2008
touching and that her testimony was sufficient to render her hearsay statements admissible. Funk
then testified about his PTSD diagnosis and added that sexual abuse can cause the disorder.
Tjersland testified that L.R.H. was uncomfortable mentioning Robinson and had said she was too
afraid to talk about him. When the defense made a hearsay objection, Tjersland explained that she
asked L.R.H. to share her thoughts and feelings to make a medical diagnosis, and the trial court
overruled the objection. Tjersland added that L.R.H. said Robinson gave her a lemon drink she
did not like. Austin then testified that when she was with L.R.H. in a grocery store in October
2008, L.R.H. pointed to the beer and said Robinson had given her some. L.R.H. told Austin that
same month that Robinson had touched her "pink thingy," and in January 2010, she said Robinson
made her watch inappropriate movies and touch his "thingy." 1 RP at 110-12.
Copeland testified about his interview with L.R.H. at her great-grandmother's house.
L.R.H. told him that Robinson had touched her privates inside her underwear with his hand and
that it happened two days in a row just before Christmas. She said it also happened a year before
around Christmas on a "bad day." 1 RP at 130. On that day, L.R.H. explained that Robinson
again touched her privates underneath her underwear with his hand. When Copeland asked
9
No. 41027-3-II
whether Robinson's hand was inside her, she said it was. The more recent Christmas touching
occurred when she went into Robinson's bedroom to play. They were lying on the couch
watching television when he touched her in her private area.
During Young's testimony, the State played part of her recorded interview with L.R.H.
for the jury. During that interview, L.R.H. said Robinson touched her this Christmas and a long
time ago, when she was three; that the touching hurt; that she saw Robinson's private part; that
Robinson tried to make her touch it; and that slime came out of it.
Lujuane testified that L.R.H. told her on Christmas 2008 about Robinson's touching.
L.R.H. told her it had happened more than once, including once at the park, and she also said she
had watched a "dirty" movie in Robinson's room. 2 RP at 182. L.R.H. pointed to alcoholic
lemonade at the grocery store and said Robinson had given her some, which he later admitted to
Lujuane. L.R.H. told her mother more recently that she had touched and massaged Robinson's
penis. Lujuane added that Robinson hurriedly left the house as soon as Copeland and Chief
Williams arrived.
Chief Williams testified that L.R.H.'s demeanor changed when she talked to him and
Copeland about Robinson's touching, and that she pointed to her crotch area when asked where it
occurred. He added that she referred to the recent Christmas and to the past Christmas and said
the recent touching happened at least two days in a row. Robinson later admitted to Williams that
L.R.H. was often in his bedroom.
At the end of the State's case, the defense moved to dismiss for insufficient evidence. The
court denied the motion, finding that the State had produced evidence sufficient to prove each
element of each count.
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No. 41027-3-II
During closing argument, defense counsel argued that "somebody has made that child a
pawn. I don't know who. And for our purposes here today it doesn't matter. But we know that
she's not being truthful. We know that she's either not being truthful when she was here in this
courtroom or she wasn't truthful when she spoke to all those other people." 3 RP at 280. The
State offered this rebuttal:
Defense wants you to think there's a big red herring here, there's some
puppet master out there masterminding this whole thing against [Robinson] for
some unknown reason. Well, let's think about it like this: What's the more
reasonable scenario? One day either [L.R.H.] and Lujuane woke up and said I'm
going to hatch an evil plan today to get [Robinson] in trouble for absolutely no
reason and I'm going to put us through this process that's going to go on for years
for no reason, let's coach this tiny, tiny girl to say these horrible things for no
reason, so there's that scenario. Or there's the second scenario, that he did
terrible, terrible, terrible things to [L.R.H.] and that she's been telling an accurate
story ever since. I would submit to you that second option is a lot more
reasonable than the first one.
3 RP at 287. The jury found Robinson guilty as charged.
Sentencing
The presentence report listed Robinson's prior Washington and Texas convictions. At
sentencing, the State introduced records of these convictions through the testimony of Detective
Ross Kenepah, a fingerprint expert with the Lewis County Sheriff's Office. Defense counsel did
not object to the admission of Robinson's 2005 judgment and sentence from Lewis County for
second degree burglary. Nor did the defense object to the admission of Robinson's 1999
judgment and sentence from Texas for burglary of a building. The defense did object to the
proposed admission of some allegedly uncertified records, but Robinson did not object to the
Texas records concerning his 1990 convictions for forgery and burglary of a building, his 1986
burglary of a building conviction, his 1982 burglary of a building conviction, or his 1978 burglary
11
No. 41027-3-II
of a habitation conviction. (These and the 2005 Lewis County conviction were the prior
convictions that the State sought to include in Robinson's offender score.) Robinson
acknowledged that all of these documents were properly certified and admitted.
The State argued that Robinson's offender score was 13 and began to go through the 23
exhibits it had offered. The trial court interrupted: "Rather than have you go through all 23 of
these exhibits, I'll ask [defense counsel] if there are any of these based on the evidence that has
been presented that you still have objections to or do you agree that they have been proved?" RP
(Aug. 2, 2010) at 33. Counsel responded that he wanted to maintain the objections already made,
and he argued that Robinson's forgery conviction had washed. When asked, the defense voiced
no further objections, and the court agreed that the forgery washed. The defense then argued that
the offender score should be 9 instead of 12 because two of Robinson's current convictions
merged. The trial court disagreed and imposed an exceptional sentence of 252 months based on
Robinson's high offender score and "free" crime, with all counts running concurrently.
Robinson now challenges his convictions and his sentence.
DISCUSSION
L.R.H.'s Competency
Robinson first challenges the trial court's decision that L.R.H. was competent to testify.
Washington courts presume that all witnesses are competent until proved otherwise by a
preponderance of the evidence. State v. Brousseau, 172 Wn.2d 331, 341, 259 P.3d 209 (2011).
Anyone who is incapable of receiving just impressions of the facts or relating them truly is not
competent to testify. RCW 5.60.050(2); CrR 6.12(c); State v. S.J.W., 170 Wn.2d 92, 100, 239
P.3d 568 (2010). Although a child's age is not determinative of his or her capacity as a witness,
12
No. 41027-3-II
five factors must be found before a child can be declared competent to testify:
"(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."
In re Dependency of A.E.P., 135 Wn.2d 208, 223, 956 P.2d 297 (1998) (quoting State v. Allen,
70 Wn.2d 690, 692, 424 P.2d 1021 (1967)); State v. Pham, 75 Wn. App. 626, 629-30, 879 P.2d
321 (1994), review denied, 126 Wn.2d 1002 (1995). Intelligence and not age is the proper
criterion to use in determining the competency of a young child. Allen, 70 Wn.2d at 692; see also
State v. Bailey, 52 Wn. App. 42, 757 P.2d 541 (1988) (child who was three at time of abuse was
competent), aff'd, 114 Wn.2d 340 (1990); State v. Hunsaker, 39 Wn. App. 489, 693 P.2d 724
(1984) (children who were four and a half and two and a half at time of alleged molestation were
competent to testify a year later).
Determining a child's ability to meet the five Allen factors rests primarily with the trial
judge who sees the child, notices his manner, and considers his capacity and intelligence. 70
Wn.2d at 692; see also State v. Borland, 57 Wn. App. 7, 11, 786 P.2d 810 ("There is probably no
area of law where it is more necessary to place great reliance on the trial court's judgment than in
assessing the competency of a child witness."), review denied, 114 Wn.2d 1026 (1990),
disapproved on other grounds by State v. Rohrich, 132 Wn.2d 472, 939 P.2d 697 (1997). These
matters are not reflected in the written record, and their determination will not be disturbed absent
a manifest abuse of discretion. Allen, 70 Wn.2d at 692; see also State v. Swan, 114 Wn.2d 613,
645, 790 P.2d 610 (1990), cert denied, 498 U.S. 1046 (1991).
13
No. 41027-3-II
The trial court considered the five Allen factors in assessing L.R.H.'s competency to
testify:
I believe that she had a really, actually, I think for four- or five-year-old, an
outstanding understanding of the obligation to speak the truth. Her mental
capacity was at the time such that she could receive an accurate impression of the
events. Now, that's really hard to say because we didn't have someone there
interviewing her at the time. . . . But it seems to me to the extent I'm able to
answer that question, she did have the mental capacity.
And the way I reach that is that she was able to respond to the CPS worker
and Chief Williams in a meaningful fashion indicating to me that she had the mental
capacity. That does not presuppose the truthfulness of the answers, but it does
show she had the mental capacity to do it.
I believe, it was obvious to me, at any rate, that she had sufficient memory
to retain an independent recollection of the events. Again, we're looking at this
through the prism of a four- and five-year-old. There are going to be difficulties
there, but I believe the state has established this. . . . Then she also has the
capacity to express in words her memory of the event.
I understand [defense counsel's] dispute with this because she became
nonverbal when she was talking about what actually occurred. I was very careful
to watch how she responded to those questions. And it's one of the reasons why I
was curious to see why the state was going to even try this because I think we
make the competence determination separate from the facts of the case. But,
nonetheless, I think she has the capacity to express in words or memory.
RP (Oct. 28, 2009) at 123-25. The court concluded that L.R.H. was "very much more of a
conversational five-year-old than I've seen in many of these cases. So I find she's competent."
RP (Oct. 28, 2009) at 125.
Robinson argues now that L.R.H. did not demonstrate an ability to understand the
obligation to speak the truth, but the bulk of her testimony suggests otherwise. The prosecutor
questioned her rather extensively about her capacity to distinguish the truth from a lie and why
telling the truth was important, and she demonstrated an understanding of the distinction and the
importance of testifying truthfully. It is true that she adhered to her statement that she has 10
sisters (she has none) and nodded when asked if she had spoken to Copeland recently (their
14
No. 41027-3-II
interview occurred 10 months earlier). These shortcomings, however, do not necessarily
outweigh her other testimony about her obligation to speak the truth. See State v. Karpenski, 94
Wn. App. 80, 106, 971 P.2d 553 (1999) (child who manifested long-standing, often-observed
inability to distinguish truth from fantasy was incompetent), abrogated on other grounds by State
v. C.J., 148 Wn.2d 672, 63 P.3d 765 (2003); Pham, 75 Wn. App. at 628-30 (child victim was
competent despite her difficulty in answering basic questions about her birth date, where she lived,
and where she went to school). Moreover, Copeland questioned L.R.H. closely about the
difference between the truth and a lie, and her answers showed that she understood the
distinction. See Brousseau, 172 Wn.2d at 340 (appellate courts may consider entire record in
reviewing competency).
Robinson is correct in arguing that the trial court did not separately discuss L.R.H.'s
mental capacity at the time of the 2007 charge, as opposed to the two 2008 charges. The trial
court commented on the difficulty of assessing this factor, however, and our Supreme Court has
observed that a child's ability to relate contemporaneous events allows a court to infer that she is
competent to testify about the abuse incidents as well. A.E.P., 135 Wn.2d at 225. L.R.H.
anchored the 2007 allegation to Christmas, an event that evidently stood out in her mind, and she
understood that she was three years old at the time. When Young asked if she remembered that
time or was told about it, she said she remembered. With regard to the Christmas 2008
allegations, L.R.H. tied that touching to the recent holiday in talking to both Young and
Copeland.
In arguing that L.R.H. had an insufficient memory to retain an independent recollection of
the occurrence, Robinson points to L.R.H.'s inability to remember what she did not like about
15
No. 41027-3-II
him during an interview with defense counsel shortly before trial. Robinson omits the fact that
counsel never asked her directly about the incidents and that L.R.H. said she moved out of her
great-grandmother's house because of his touching. Moreover, L.R.H. described both the 2008
and 2007 abuse in some detail in response to open-ended questions from Copeland. That she did
not so describe the abuse during the hearing does not mean she was incompetent. See State v.
Carlson, 61 Wn. App. 865, 875, 812 P.2d 536 (1991) (child's reluctance to testify about specific
acts of abuse does not render him or her incompetent), review denied, 120 Wn.2d 1022 (1993).
With regard to L.R.H.'s capacity to express her memory of the abuse in words, the
transcript shows that she responded to questions in some detail until asked about the abuse. She
then became nonverbal to a large extent and either nodded or shook her head in response to many
questions, particularly on cross-examination. When the State urged her to use her words,
however, she did so, and she stated that Robinson had touched her this Christmas and last
Christmas, when she was three. She identified some of the people she had talked to and she
related what she told them to a limited extent.
Finally, the record shows that she had the ability to understand simple questions about the
abuse. Her testimony suggests that her reluctance to describe the abuse stemmed more from
discomfort than an inability to understand the questions posed. As she became more reluctant to
testify, the questions grew somewhat more complicated, but when asked a simple question, she
was clearly able to understand and respond. Robinson does not show by a preponderance of the
evidence that L.R.H. was incompetent, and we hold that the trial court did not abuse its discretion
in permitting her to testify. See Brousseau, 172 Wn.2d at 341-42 ("to reverse the trial judge's
competency ruling, we must find that Brousseau proved by a preponderance of evidence that [the
16
No. 41027-3-II
victim] was 'incapable of receiving just impressions of the facts' or 'relating them truly.' RCW
5.60.050.").
Admissibility of L.R.H.'s Hearsay Statements
Robinson next challenges the trial court's decision to admit L.R.H.'s hearsay statements,
arguing first that the record does not support three of the findings of fact supporting admission.
He challenges other findings as well, but these challenges are directed at the reasoning supporting
admission of the hearsay rather than the findings' inadequate factual support. Accordingly, these
remaining challenges are incorporated into our analysis of Robinson's legal arguments concerning
the trial court's rulings.
17
No. 41027-3-II
A. Challenged Findings
Robinson asserts that three findings of fact lack factual support:
1.3 On December 25, 2008, L.R.H. told her maternal grandmother, [Debbie]
. . . that she had something to tell her.
1.4 L.R.H. proceeded to tell [Debbie] that [Robinson] had touched her and
rubbed her vagina under her clothes.
1.5 L.R.H. then went and told her mother, [Lujuane], that [Robinson] had
rubbed her vagina underneath her clothes.
Clerk's Papers at 29.
We review findings of fact for substantial evidence. State v. Halstein, 122 Wn.2d 109,
128-29, 857 P.2d 270 (1993). Robinson asserts that there is no evidence that L.R.H.'s statements
to Debbie were spontaneous because Debbie did not testify, having died shortly before the
competency/hearsay hearing. Robinson also complains that the record does not show what
L.R.H. told Debbie and that L.R.H. simply told her mother she was touched.
Lujuane testified at the child hearsay hearing that after she had come inside from smoking
on Christmas evening, her mother came up to her and said she needed to talk with L.R.H. When
Lujuane asked her daughter what was wrong, L.R.H. told her that Robinson had touched her
private area and pointed toward her crotch. L.R.H. testified that she told her grandmother and
mother what had happened. She told Copeland that after Robinson touched her private parts, she
told her grandmother. She told Young that after Robinson touched her in the wrong place and
told her not to tell, she walked out of the bedroom and told her grandmother and her mother. She
explained to Copeland and Young that Robinson had touched her private parts. This evidence is
sufficient to support the challenged findings.
18
No. 41027-3-II
B. Indicia of Reliability
Robinson next challenges the trial court's decision that L.R.H.'s hearsay statements
satisfied the reliability requirement set forth in the child victim hearsay statute, RCW 9A.44.120.
This statute provides for the admission of hearsay statements when the declarants are victims of
sexual abuse under the age of 10. State v. Woods, 154 Wn.2d 613, 623, 114 P.3d 1174 (2005).
Hearsay is admissible if
(1) [t]he court finds . . . 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.
RCW 9A.44.120. Appellate courts will not reverse a finding that statements meet these statutory
criteria absent a manifest abuse of discretion. Woods, 154 Wn.2d at 623.
To assess the reliability of child hearsay statements, Washington courts apply the nine
Ryan factors. Swan, 114 Wn.2d at 647 (citing State v. Ryan, 103 Wn.2d 165, 175-76, 691 P.2d
197 (1984)). The nine factors are (1) whether the child had an apparent motive to lie, (2) the
child's general character, (3) whether more than one person heard the statements, (4) the
spontaneity of the statements, (5) whether trustworthiness was suggested by the timing of the
statement and the relationship between the child and the witness, (6) whether the statements
contained express assertions of past fact, (7) whether the child's lack of knowledge could be
established by cross-examination, (8) the remoteness of the possibility that the child's recollection
was faulty, and (9) whether the surrounding circumstances suggested the child misrepresented the
defendant's involvement. Woods, 154 Wn.2d at 623 (citing Ryan, 103 Wn.2d at 175-76). Every
19
No. 41027-3-II
factor does not need to be satisfied; it is enough that they are substantially met. Woods, 154
Wn.2d at 623-24.
The trial court concluded that L.R.H.'s hearsay statements were reliable, except for the
statements regarding sexual contact made to Tjersland, without going through a detailed
discussion of each factor:
They were made spontaneously, they were made in a timely fashion and without
inappropriate questioning, that's certainly true for the mother. To the CPS
worker, they were close in time to the original disclosure. The child did not know
the purpose in advance of the interview and the questioning was appropriate and
non-leading. [To Young], again, the story is relatively consistent, she was
interviewed appropriately, the disclosure part of what she talked about was
spontaneous, albeit, in response to some questioning, and she was told that the
purpose of the interview was for a medical exam. She was told that several times
so it is unlikely she was thinking in terms of convicting [Robinson] when she was
making those statements.
RP (Oct. 28, 2009) at 125-26.
Robinson argues that the trial court erred in failing to consider the Ryan factors
individually and that most do not support the court's reliability ruling. He contends that L.R.H.'s
motive to lie is shown by the fact that she was subject to bathroom accidents that she did not want
her mother to know about. As support, Robinson cites a statement L.R.H. made at the end of her
interview with Young in which she said that although she was hungry, she could not have
chocolate. "I just can't have chocolate because I go to the bathroom on myself too much and I
went to the bathroom on myself last night and didn't want to tell my mom that I had." Ex. 7, at 9.
Robinson also cites Lujuane's trial testimony that Robinson told her the day after L.R.H. reported
his touching that she had urinated on his bedroom floor. This trial testimony was irrelevant to the
pretrial reliability determination, and L.R.H.'s explanation of her reaction to chocolate does not
20
No. 41027-3-II
show that she had a motive to lie when making her disclosures.
With regard to the child's character, Robinson asserts that L.R.H. told "little-kid lies." Br.
of Appellant at 15. Lujuane testified that L.R.H. would sometimes tell obvious lies, as with any
child her age, but that she would then tell the truth. See State v. Kennealy, 151 Wn. App. 861,
881, 214 P.3d 200 (2009) (child's reputation for truthfulness assists in assessing general
character), review denied, 168 Wn.2d 1012 (2010). L.R.H. explained to Copeland and to the
court that she knew the difference between the truth and a lie and that telling lies is bad. The
record does not show she was not trustworthy.
Contrary to Robinson's assertions, L.R.H. made consistent statements concerning the
molestations to several people: her mother, Copeland, Young, and Austin. Robinson complains
that L.R.H.'s statements to Young were not spontaneous because they were answers to leading
questions. See Kennealy, 151 Wn. App. at 883 (statements made in response to questioning are
spontaneous so long as the questions are not leading or suggestive). It is true that some of
Young's questions were leading, but L.R.H.'s key disclosures came in response to open-ended
questions:
[Q:] Okay so why don't you tell us [what] happened?
[A:] Okay, on Christmas night um, when it was Christmas night, I went to my
uncle's bedroom and then um after that um, I played with a toy but then I
got on the couch and then um he touched me in the wrong place.
[Q:] He did What's the wrong place?
[A:] He touched me down here.
[Q:] How did that feel?
[A:] Um, not good. And he touched me up here too.
[Q:] Oh, up here, okay. Did he say anything?
[A:] Um, no.
[Q:] Okay.
[A:] Um, he just told me um, not to tell anybody, but I had to so I just closed,
walked out of his bedroom and told my mom and grandma.
21
No. 41027-3-II
Ex. 7, at 2; see Kennealy, 151 Wn. App. at 883 (describing question of "[did] he touch you?" as
open-ended because it did not suggest response about sexual contact) (alteration in original).
Young obtained a few details through leading questions, but the main disclosures were the result
of open-ended questions.
With regard to the timing of the declaration and the relationship between the declarant and
the witness, Robinson declares it likely that children tell authority figures what they want to hear.
He ignores the fact that L.R.H. reported the Christmas 2008 abuse to her grandmother and
mother shortly after it allegedly occurred and to Copeland and Young only a few days and weeks
later. Moreover, when the witness is in a position of trust with a child, this position enhances the
reliability of the child's statement. Kennealy, 151 Wn. App. at 884. In Kennealy, this court
observed that the children were in a position of trust with the family members to whom they made
disclosures and to the police officers and nurses as well: "the children likely trusted them because
of their authoritative position in the community and because the discussion took place in a trusting
or clinical atmosphere." 151 Wn. App. at 884. The same reasoning supports the reliability of
L.R.H.'s hearsay statements.
L.R.H.'s statements involved statements of past fact, but this does not render them
unreliable. See Swan, 114 Wn.2d at 650-51 (child hearsay statements about sexual abuse will
usually contain statements about past fact). The factor concerning whether cross-examination
could show the declarant's lack of knowledge does not apply where the child is available to
testify. Woods, 154 Wn.2d at 624. With regard to the possibility that L.R.H.'s recollection was
faulty, the record shows that she reported the touching on Christmas 2008 directly after its
alleged occurrence, and that she tied the former episode to the Christmas before, when she was
22
No. 41027-3-II
three years old. This specificity, as well as the fact that L.R.H. repeated key details to several
witnesses, supports the accuracy of her recollection. See Swan, 114 Wn.2d at 651-52 (when child
makes statement soon after an event and then makes consistent statements to others shortly
thereafter, there is little possibility that her recollection was faulty).
The final Ryan factor is whether the circumstances surrounding the statement are such that
there is no reason to suppose the declarant misrepresented the defendant's involvement.
Robinson points to no specific circumstance supporting misrepresentation, and none appears
obvious. Lujuane testified that Robinson and L.R.H. played together and got along well before
the disclosures. The trial court did not separately address this factor, but the record shows no
reason why L.R.H. would have misrepresented Robinson's involvement.
In short, most of the Ryan factors support the trial court's conclusion that L.R.H.'s
hearsay statements were reliable. As the trial court added, however, these statements were
admissible only if L.R.H. testified in a meaningful manner because there was insufficient
corroboration that the molestation occurred. See RCW 9A.44.120(2)(b) (even if reliable, child
hearsay is inadmissible when child does not testify unless there is corroboration of the act).
The State does not challenge this conclusion, so we need not address the corroboration
issue.4 We turn instead to Robinson's contention that L.R.H. did not testify meaningfully, thereby
rendering her uncorroborated hearsay inadmissible under both RCW 9A.44.120(2)(b) and the
confrontation clause.
C. L.R.H.'s Availability Under RCW 9A.44.120(2) and the Confrontation Clause
4 We note, however, that Young of Providence St. Peter's Hospital Sexual Assault Clinic testified
at the child hearsay hearing that when she examined L.R.H., she found considerable redness in the
child's vaginal area.
23
No. 41027-3-II
Whether the admission of L.R.H.'s hearsay statements violated Robinson's confrontation
rights is a constitutional issue that we review de novo. State v. Price, 158 Wn.2d 630, 638-39,
146 P.3d 1183 (2006). There was considerable discussion during the reliability hearing about
Robinson's confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354,
158 L. Ed. 2d 177 (2004), and we hold that discussion sufficient to preserve this issue for
appellate review.
The Sixth Amendment's confrontation clause provides that "[i]n all criminal prosecutions,
the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S.
Const. amend. VI. The Washington Supreme Court evaluated that clause in light of the
requirement in RCW 9A.44.120(2) that a child must testify to render uncorroborated hearsay
admissible in Rohrich. In Rohrich, the child took the stand at trial but was not asked and did not
answer questions about any alleged abuse, and defense counsel did not cross-examine her. The
State presented its case through hearsay evidence alone. Rohrich, 132 Wn.2d at 474-75. In
finding this hearsay inadmissible under both RCW 9A.44.120(2) and the confrontation clause, the
Supreme Court emphasized the central role of cross-examination in ascertaining truth. Rohrich,
132 Wn.2d at 478. It reasoned that the opportunity to cross-examine required the State to elicit
the damaging testimony from the witness so the defendant could cross-examine if he chose.
Rohrich, 132 Wn.2d at 478.
The Supreme Court subsequently considered whether a child victim testified adequately to
support admission of her prior out-of-court statements when she took the stand but recanted her
earlier allegations. State v. Clark, 139 Wn.2d 152, 153, 985 P.2d 377 (1999). The court
concluded that the admission of hearsay does not violate the confrontation clause if the declarant
24
No. 41027-3-II
is asked about the event and the hearsay statement at trial and the defendant is given an
opportunity for full cross-examination. Clark, 139 Wn.2d at 159. The situation was
distinguishable from Rohrich because the defendant had a full opportunity to cross-examine the
child about the alleged acts and her hearsay; the State did not seek to shield her from difficult
questions, nor was she evasive in her answers. Clark, 139 Wn.2d at 161.
The Supreme Court reconsidered this issue in light of Crawford, which held that the State
may present a witness's prior testimonial statements at trial only if the witness is truly unavailable
and the defendant has had a prior opportunity for cross-examination. Price, 158 Wn.2d at 639
(citing Crawford, 541 U.S. at 59, 68). In Price, the defendant argued that a child's inability to
remember her alleged abuse on the witness stand rendered her unavailable and her hearsay
inadmissible. 158 Wn.2d at 639. But although the child testified that she could not remember any
abuse, there was no effort to shield her from questions about her prior out-of-court allegations.
Price, 158 Wn.2d at 648. The confrontation clause was satisfied because the State asked the
child about the underlying events and her prior statements and the defendant had a full
opportunity to expose her memory lapse through cross-examination. Price, 158 Wn.2d at 648-
49. A witness's inability to remember does not implicate Crawford or foreclose admission of
pretrial statements. Price, 158 Wn.2d at 650. Crawford leaves intact the principle that a witness
who is present and testifying at trial does not present a confrontation clause issue. Price, 158
Wn.2d at 650.
Under the tests set forth in Clark and Price, L.R.H. testified in a manner that satisfies both
RCW 9A.44.120(2) and the confrontation clause. She described at least one act of molestation
and the surrounding events, denied other acts, and maintained that she had told the truth when
25
No. 41027-3-II
talking to her family and others about Robinson. L.R.H.'s testimony afforded Robinson the
opportunity to cross-examine her about all three charges and to explore her ability to remember
and recount events accurately. Through this cross-examination, Robinson was able to call
attention "to the reasons for giving scant weight to the witness's testimony." Price, 158 Wn.2d at
649. The jury also was able to observe L.R.H. and evaluate whether it believed she forgot or was
evading. Price, 158 Wn.2d at 649. The trial court's observations are relevant here:
I'll find that clearly she did testify in a meaningful manner with regard to the
touching that occurred on December 25th, 2008. So she has clearly satisfied it for
that first charge.
With regard to the others, she denied having memory of some of those
incidents. I don't put much weight on her answers to the repeated cross-
examination, direct examination, cross-examination regarding what she was
told. . . .
. . . .
. . . [B]oth counsel were making pretty fine points about what she was told
and whether it was the truth and whether she was told to tell the truth or whether
she was told to tell something and therefore that was the truth, there was a lot of
shades of gray in all of the questions that you both asked there.
. . . .
. . . I think you're describing some pretty fine distinctions to the testimony
of a six-year-old and I don't make those fine distinctions. I'm going to find that
there was meaningful testimony here, given the case law, given the circumstances
that we have with this child, and I will make a finding that there was a
constitutionally adequate cross-examination in this case.
1 RP at 60-63. We conclude that the trial court did not err in admitting L.R.H.'s hearsay
statements.5
5 Because L.R.H. testified in a manner that satisfies both RCW 9A.44.120(2) and the constitution,
we need not consider whether the trial court properly found the bulk of her hearsay to be
nontestimonial. Prior statements must be excluded under Crawford only if a witness is
unavailable at trial. Price, 158 Wn.2d at 639. Had we concluded that L.R.H. did not testify
meaningfully so was unavailable, we still would not evaluate whether her hearsay was
nontestimonial because it was uncorroborated and thus inadmissible. See RCW 9A.44.120(2)(b)
(if witness does not testify, hearsay is inadmissible unless there is corroborative evidence of the
act); State v. Shafer, 156 Wn.2d 381, 128 P.3d 87 (where child was unavailable to testify but her
hearsay was corroborated, court examined whether hearsay was nontestimonial and thus
26
No. 41027-3-II
Supplemental Child Hearsay Hearing
Robinson argues here that the State presented an untimely motion for reconsideration that
violated his right to due process when it sought a supplemental hearing to present additional
evidence corroborating L.R.H.'s allegations. See CR 59(b) (motion for reconsideration must be
filed within 10 days of the decision).
This argument, and Robinson's related claim of prejudice, overlooks several facts. The
trial court recognized that the State was not moving for reconsideration but was attempting to
supplement the hearsay with information that had not been produced at the time of the original
hearing in 2009: reports from Cascade Mental Health and subsequent disclosures to Lujuane and
her friend, Austin. The newly-appointed defense attorney admitted that the extension of time due
to the supplemental hearing would allow him to interview witnesses, and he conceded that the
State was not seeking reconsideration as much as the chance to supplement and corroborate the
child hearsay.
But even if the State did file an untimely motion for reconsideration, Robinson can show
no prejudice because the trial court did not alter its corroboration ruling. See State v. Cantrell,
111 Wn.2d 385, 388-89, 758 P.2d 1 (1988) (proof of prejudice is necessary element of due
process claim). Robinson maintains, however, that prejudice resulted because the supplemental
hearing (1) enabled L.R.H. to testify that she told Tjersland that Robinson had touched her and
(2) allowed Lujuane to hint that something happened between L.R.H. and Robinson in a park.
This testimony was admissible without the supplemental hearing. L.R.H.'s testimony was not
admissible under Crawford), cert. denied, 549 U.S. 1019 (2006).
27
No. 41027-3-II
hearsay, and Lujuane did not refer to the park until she testified at trial.6 Consequently,
Robinson's claim of a due process violation fails.
Sufficiency of the Evidence
Count I charged Robinson with committing first degree child molestation between
December 1 and 25, 2008; count II charged him with committing attempted first degree child
molestation between the same dates; and count III alleged that he committed first degree child
molestation between December 1 and 31, 2007. Robinson concedes that there was sufficient
evidence to find him guilty of count I, but he challenges the sufficiency of the evidence supporting
his remaining convictions.
Evidence is sufficient to support a conviction if, viewed in the light most favorable to the
prosecution, it permits any rational trier of fact to find the essential elements of the crime beyond
a reasonable doubt. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). "A claim of
insufficiency admits the truth of the State's evidence and all inferences that reasonably can be
drawn therefrom." Salinas, 119 Wn.2d at 201. Circumstantial and direct evidence are equally
reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of
fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d
1011 (1992).
To prove first degree child molestation as charged in count III, the State had to prove that
6 Given the lack of prejudice, we also reject Robinson's passing claim that his attorney
represented him ineffectively by failing to cite authority supporting his objection to the
supplemental proceeding. See State v. Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)
(defendant must show deficient performance that resulted in prejudice to establish ineffective
assistance).
28
No. 41027-3-II
Robinson had sexual contact with L.R.H. between December 1 and 31, 2007; that she was less
than 12 years old at the time and not married to Robinson; that she was at least 36 months
younger than Robinson; and that the acts occurred in Washington. To prove attempted first
degree child molestation as charged in count II, the State had to prove that between December 1
and 25, 2008, Robinson did an act that was a substantial step toward the commission of first
degree child molestation against L.R.H. with the intent to commit that crime.
During closing argument, the State contended that count II was proven by L.R.H.'s
testimony that the December 2008 touching happened two days in a row. The State pointed out
that L.R.H. had stated that she had to massage Robinson's penis and that he tried to make her
touch his penis. The State maintained that the attempt could apply where Robinson tried to or
actually did touch L.R.H. The State argued that count III was established by L.R.H.'s testimony
to Copeland that the touching happened a year ago at Christmas.
The evidence is sufficient to establish that sexual contact occurred between Robinson and
L.R.H. on at least two occasions in December 2008 and in December 2007. Copeland testified
that she told him the touching happened two days in a row just before Christmas 2008. Williams
confirmed this testimony. L.R.H. also told Copeland and Williams that bad touching happened a
year before around Christmas, and she confirmed to Young that touching happened on Christmas
and a long time ago, when she was three years old. Viewed in the light most favorable to the
State, the evidence is sufficient to support all three convictions.
Ineffective Assistance of Counsel
Robinson claims next that he was "constructively" denied effective assistance of counsel
when the trial court allowed his first attorney to withdraw.
29
No. 41027-3-II
An attorney may withdraw after a criminal case has been set for trial only for good cause
and with the trial court's written consent. CrR 3.1(e). Robinson's attorney withdrew because of
the conflict of interest presented when two employees from Cascade Mental Health, of which he
is a board member, were added to the State's witness list. Robinson acquiesced at the time but
argues now that the claimed conflict was illusory.
Determining whether a conflict of interest precludes continued representation of a client is
a question of law subject to de novo review. State v. Vicuna, 119 Wn. App. 26, 30, 79 P.3d 1
(2003), review denied, 152 Wn.2d 1008 (2004). Washington's rules of professional conduct
explain that a lawyer shall not represent a client if the representation involves a concurrent conflict
of interest. RPC 1.7(a); see also United States v. Moscony, 927 F.2d 742, 748 (3d Cir.) (Sixth
Amendment guarantees right to attorney's conflict-free, undivided loyalty), cert. denied, 501 U.S.
1211 (1991). Such a conflict exists if there is a significant risk that the client's representation will
be materially limited by the lawyer's responsibilities to a third person or the lawyer's personal
interests. RPC 1.7(a)(2). A lawyer's duties of loyalty and independence may be materially limited
by the lawyer's responsibilities to others, such as fiduciary duties arising from a lawyer's service
as a trustee, executor, or corporate director. RPC 1.7, cmt. [9]. Here, counsel believed that his
duties to Cascade Mental Health would compromise his representation of Robinson. The
proposed testimony from the two employees did not support Robinson's claim of innocence, and
his new attorney cross-examined Tjersland three times in challenging her testimony. We conclude
that the trial court did not err in granting counsel's motion to withdraw.
Robinson argues further that "the adversarial process broke down" with the substitution of
his attorney. Br. of Appellant at 37. The record shows that his new attorney vigorously
30
No. 41027-3-II
represented Robinson and reveals no instance where the process broke down. Indeed, Robinson
denies that substitute counsel did anything wrong. Without specific examples of deficiency and
prejudice, his claim of ineffective assistance of counsel fails. See State v. Reichenbach, 153
Wn.2d 126, 130, 101 P.3d 80 (2004) (defendant must show deficient performance that resulted in
prejudice to establish ineffective assistance).
Prosecutorial Misconduct
Robinson argues here that when the prosecuting attorney suggested in his rebuttal
argument that there were two possible scenarios, with one involving a scheme to convict
Robinson and the other showing that Robinson committed the charged molestation, he committed
flagrant error that requires reversal.
A defendant claiming prosecutorial misconduct "'bears the burden of establishing the
impropriety of the prosecuting attorney's comments and their prejudicial effect.'" State v.
McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529,
561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007 (1998)). Comments are deemed
prejudicial only where there is a substantial likelihood that they affected the verdict. McKenzie,
157 Wn.2d at 52. "A prosecuting attorney's allegedly improper remarks must be reviewed in the
context of the total argument, the issues in the case, the evidence addressed in the argument, and
the instructions given to the jury." Brown, 132 Wn.2d at 561. When the defense fails to object,
the error is considered waived "unless the comment is so flagrant and ill-intentioned that it causes
an enduring and resulting prejudice that could not have been neutralized by a curative instruction
to the jury." Brown, 132 Wn.2d at 561.
A prosecutor has wide latitude in closing argument to draw reasonable inferences from the
31
No. 41027-3-II
evidence and may freely comment on witness credibility based on the evidence. State v. Lewis,
156 Wn. App. 230, 240, 233 P.3d 891 (2010). This is especially so where the prosecutor is
rebutting an issue the defense raised in closing argument. Lewis, 156 Wn. App. at 240.
The prosecutor's reference to the two possible scenarios followed the defense argument
that someone had made L.R.H. a pawn and that she was untruthful either when she testified or
when she spoke to the other witnesses. The defense did not object to the rebuttal statements at
issue, as it did to other comments. The prosecutor's argument was not improper, and this claim
of misconduct is meritless.
Proof of Offender Score
Robinson also contends that the State did not provide sufficient evidence to establish the
existence or comparability of his prior Texas convictions.
Including a prior out-of-state conviction in an offender score is permissible if the State
proves its existence by a preponderance of the evidence and also proves that the conviction would
be a felony under Washington law. State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999).
In a sentencing hearing, a criminal history summary from the prosecutor or a state agency "shall
be prima facie evidence of the existence and validity of the convictions listed therein." RCW
9.94A.500(1). A court may rely on this summary and other criminal history presented at
sentencing if the defendant acknowledges it:
In determining any sentence other than a sentence above the standard range, the
trial court may rely on no more information than is admitted by the plea agreement,
or admitted, acknowledged, or proved in a trial or at the time of sentencing, or
proven pursuant to RCW 9.94A.537. Acknowledgement includes not objecting to
information stated in the presentence reports and not objecting to criminal history
presented at the time of sentencing.
32
No. 41027-3-II
RCW 9.94A.530(2). The legislature recently expanded the definition of "acknowledgement" to
include the failure to object. Laws of 2008, ch. 231, § 4.
The best evidence of a prior conviction is a certified copy of the judgment. Ford, 137
Wn.2d at 480. In addition to the presentence report listing Robinson's criminal history, the State
produced certified copies of the judgment for each Texas conviction included in his offender
score. Moreover, the defense conceded that the critical exhibits were properly certified and
admitted. And, contrary to Robinson's argument on appeal, these documents contain a judge's
signature.7 Consequently, his current challenge to the existence of his prior Texas convictions
fails.
It is arguable that Robinson acknowledged the comparability of his prior convictions as
well as their existence when he said that he had no objections to their proof other than the
objections to some uncertified exhibits. We recently held, however, that the definition of
acknowledgement in RCW 9.94A.530(2), as amended in 2008, is unconstitutional in providing
that a defendant's failure to object to bare assertions in a criminal history summary constitutes
acknowledgement. State v. Hunley, 161 Wn. App. 919, 929, 253 P.3d 448, review granted, 172
Wn.2d 1014 (2011); but see State v. Calhoun, 163 Wn. App. 153, 165, 257 P.3d 693 (2011)
(Division Two held that RCW 9.94A.530(2), as amended in 2008, applies to resentencing for
2005 crimes without violating ex post facto principles). "[U]nless the defendant affirmatively
acknowledges his criminal history, the State must meet its burden to prove prior convictions by
presenting at least some evidence." Hunley, 161 Wn. App. at 929.
Even if Robinson did not acknowledge his criminal history, the State satisfied its burden of
7 The 1978 judgment and sentence contain no signatures, but the waiver of indictment filed the
same day includes signatures from the judge, Robinson, and both attorneys.
33
No. 41027-3-II
proof. The record shows that Robinson's prior convictions were for burglary of a building and
burglary of a habitation. Under Texas law, a person is guilty of burglary of a building if, without
the effective consent of the owner, he entered a building with the intent to commit a felony, theft,
or assault. Tex. Penal Code Ann. §30.02(a)(1). This is comparable to second degree burglary in
Washington, which requires a person to enter or remain unlawfully in a building other than a
vehicle or dwelling, with the intent to commit a crime against a person or property therein. RCW
9A.52.030(1). A person is guilty of burglary of a habitation in Texas if he entered the habitation
without the owner's consent with the intent to commit a felony, theft, or assault. Tex. Penal
Code Ann. §30.02(a)(1). This is comparable to residential burglary in Washington, which is
committed when a person enters or remains unlawfully in a dwelling with the intent to commit a
crime against a person or property therein. RCW 9A.52.025(1). Both second degree and
residential burglary are felonies. RCW 9A.52.030(2), .025(2). The charging documents and/or
judgments supporting each Texas conviction show how Robinson met the elements of each
charge of burglary with the intent to commit theft. Robinson's Texas convictions are comparable
to Washington felonies.
Robinson alleges that his Texas judgments are facially invalid, however, because they lack
sufficient information to show that his guilty pleas were knowing and voluntary. Constitutional
invalidity on its face means a conviction that without further elaboration evidences infirmities of
constitutional magnitude. State v. Ammons, 105 Wn.2d 175, 188, 713 P.2d 719, 718 P.2d 796,
cert. denied, 479 U.S. 930 (1986). Robinson asserts that the Texas documents do not show that
he knew the elements of the offenses and how his conduct satisfied those elements, but the
documents do not support his assertion, as we explained above. Moreover, the plea statements
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No. 41027-3-II
and/or judgments for each burglary admit the offense and contain an acknowledgement of rights.
See In re Pers. Restraint of Thompson, 141 Wn.2d 712, 718, 10 P.3d 380 (2000) (courts may
consider plea documents in assessing facial invalidity claim). Finally, the plea documents or
judgments for each offense also contain written findings that the pleas were knowing and
voluntary. Robinson does not meet his burden of showing that his prior judgments and
accompanying guilty pleas on their face did not provide constitutional safeguards. State v. Lewis,
141 Wn. App. 367, 397, 166 P.3d 786 (2007), review denied, 163 Wn.2d 1030 (2008). We reject
his facial invalidity claim and his offender score challenge as a whole.
Cumulative Error
Application of the cumulative error doctrine is limited to instances when there have been
several trial errors that standing alone may not be sufficient to justify reversal but when combined
may deny a defendant a fair trial. State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000).
Having identified no error above, we reject Robinson's claim that the cumulative error doctrine
entitles him to relief.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it
is so ordered.
QUINN-BRINTNALL, J.
We concur:
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No. 41027-3-II
ARMSTRONG, P.J.
HUNT, J.
36
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