State v. Alvarez-Abrego

225 P.3d 396

154 Wn. App. 351

STATE of Washington, Respondent, v. Jose ALVAREZ-ABREGO, Appellant.

No. 38151-6-II.

Court of Appeals of Washington, Division 2.

February 2, 2010.

John A. Hays, Attorney at Law, Longview, WA, for Appellant.

Lori Ellen Smith, Lewis Co. Prosecuting Atty. Office, Chehalis, WA, for Respondent.

PART PUBLISHED OPINION

VAN DEREN, C.J.

¶ 1 Jose Alvarez-Abrego appeals his conviction for second degree child assault,¹ arguing that the trial court erred by admitting double hearsay evidence that the child victim was thrown against a wall, thus violating his Sixth Amendment² right to confrontation under Crawford,³ and that the evidence was insufficient to support his conviction. In his statement of additional grounds for review (SAG),⁴ he contends that his counsel was ineffective and argues other facts outside the record. We hold that any error is harmless and affirm.

FACTS

I. Incident and Investigation

¶ 2 On August 29, 2007, at approximately 1:30 pm, Kristina Rondeau left her apartment in Centralia, Washington, with her 10 year old son, BEC, for a doctor's appointment.⁵ Rondeau's boy friend, Alvarez-Abrego, periodically lived with her and often cared for the children while she was away. That afternoon, Rondeau left her four other children, including her four year old daughter RRR and six month old son MJS, in Alvarez-Abrego's care. RRR was the oldest child remaining at the apartment. No other adults were present and MJS was uninjured when Rondeau left.

¶ 3 Between 6:00 and 6:30 pm, Rondeau returned home and saw MJS sleeping in his baby seat. She told Alvarez-Abrego to accompany her to the store. At that point, "[Alvarez-Abrego] grabbed [MJS] and put him in the stroller and went downstairs real fast" while she readied the other children. Report of Proceedings (RP) (June 9, 2008) at 79-80. Alvarez-Abrego pushed MJS in the stroller on their way to and from the store. Rondeau thought that Alvarez-Abrego was acting unusually attached to MJS.

¶ 4 When they returned to the apartment, Rondeau noticed that the side of MJS's head was swollen behind his left ear. Rondeau immediately took MJS to a neighbor who drove them to the Centralia hospital. Hospital staff determined to transfer MJS to Mary Bridge Children's Hospital in Tacoma.

¶ 5 At Mary Bridge, Dr. Yolanda Duralde examined MJS twice over the period of several hours. She determined that MJS had suffered a complex skull fracture behind his left ear and that he had significant bleeding under his scalp. Duralde also diagnosed a healing fracture to MJS's rib and chip fractures to his wrist and ankles. Rondeau told her that RRR said that Alvarez-Abrego had thrown MJS against the wall.

¶ 6 While Rondeau and MJS were at the hospital, Centralia Police Officer Ruben Ramirez interviewed Alvarez-Abrego at the apartment. Ramirez asked if Alvarez-Abrego knew what had happened to MJS. Alvarez-Abrego responded that, earlier the previous day, while he was putting on shoes and socks in the bedroom, he heard MJS begin to cry. When Alvarez-Abrego found MJS, he was on the carpet with his siblings, crying. Alvarez-Abrego also told Ramirez that he took MJS and the other children to the store while Rondeau was away but that he did not see anything happen to MJS.

¶ 7 Centralia Police Officer Carl Buster arrested Alvarez-Abrego. When Buster asked Alvarez-Abrego if he had thrown MJS against the wall, Alvarez-Abrego paused and then in a soft voice denied throwing MJS. Alvarez-Abrego suggested that one of the other children may have caused MJS's injuries.

¶ 8 The State charged Alvarez-Abrego with second degree child assault by either (1) "recklessly inflicting substantial bodily harm" or (2) "caus[ing] bodily harm that was greater than transient physical pain or minor temporary marks" after "having previously engaged in a pattern or practice of either assaulting the child which had resulted in bodily harm that was greater than transient pain or minor temporary marks, or causing the child physical pain or agony that was equivalent to that produced by torture." Clerk's Papers at 92-93; see RCW 9A.36.130(1)(b).

II. Trial

¶ 9 On the morning of trial, the State asked the trial court to rule under the ER 803(a)(4) medical hearsay exception⁶ on the admissibility of Duralde's likely testimony that Rondeau told her that RRR said that Alvarez-Abrego threw MJS against the wall. Alvarez-Abrego objected, arguing that (1) the State chose to forgo a competency hearing for RRR, (2) the statement was hearsay upon hearsay without a hearsay exception for RRR's statement to her mother, and (3) identification of the alleged perpetrator did not further Duralde's medical diagnosis under the hearsay exception. The State chose not to call RRR as a witness on the advice of her counselor, not because RRR was an incompetent witness.

¶ 10 Impliedly overruling the threshold issue of double hearsay, the trial court ruled that Duralde could not name who purportedly threw MJS against the wall but that she could testify that MJS sustained his injuries after being thrown against a wall because the means by which the injury occurred was reasonably pertinent to the doctor's diagnosis and treatment.⁷

¶ 11 At trial, Duralde testified that MJS suffered a "stelly fracture" with multiple fractures radiating from the impact point on his skull. RP (June 9, 2008) at 41-42. She explained that, unlike simple, straight linear fractures that occur when children fall from short heights, the amount of blunt force trauma necessary to cause MJS's fracture was equivalent to a fall from 10 to 20 feet — likely more force than a five year old sibling⁸ could cause by dropping MJS in the apartment.

[THE STATE:] So based on your training and experience, do you think that a five-year-old child could hold a 16- to 18-pound infant and generate enough force to that infant to cause the kind of fracture you saw in [MJS]?

....

[DURALDE:] I think it — that's quite a heavy child for a little kid to pick up, and depending — I don't think they could pick them up high enough. The only way they could probably generate enough force is if they hit them against something specific, a corner of something or a toy of some sort. Even then, they probably wouldn't have enough force to actually make that fracture occur. So that would be difficult just because the kid weighs so much in comparison to the five-year-old.

RP (June 9, 2008) at 44-45.

¶ 12 She also explained that, because an infant's skull is still pliable, it is harder to fracture than an adult's skull; therefore, MJS's head likely hit a hard surface, such as a wall or a concrete or wood floor. When children are dropped, roll off furniture, or experience similar short falls, Duralde saw "skull fractures or clavicular fractures about one percent of the time."⁹ RP (June 9, 2008) at 42.

¶ 13 According to Duralde, MJS would definitely have experienced pain following his skull injury comparable to a bad headache followed by a low, dull ache:

[THE STATE:].... So if a child were to suffer a fracture like the one you saw in [MJS], would you expect that child to continue crying for a long period of time or to cry and then cease crying after some short period of time?

[DURALDE:] I'd expect him to keep crying until someone soothed him, unless there was something else going on with him. If he cried and then stopped crying abruptly, I would be concerned about some kind of concussion or some other injury to his head, specifically to his brain. Otherwise, most kids would cry for a while and — until somebody comforted them and then they will calm down.

RP (June 9, 2008) at 47-48. Moreover, Duralde explained, the significant bleeding and swelling pushed his scalp away from his skull, displaced his left ear, and would have caused him continuous pain.

¶ 14 Duralde added that the healing chip fractures to his wrist and ankle were characteristic of child abuse and that the healing fractured rib was most likely caused by squeezing.¹⁰ These injuries would also cause MJS more pain at first and then less as they healed, unless the site was touched or disturbed again.

¶ 15 Explaining that doctors need to know what happened to accurately diagnose and treat their patients' injuries, Duralde testified that she reviewed MJS's medical test results and asked Rondeau about his medical history. When the State asked Duralde what RRR told her mother, the defense objected, arguing outside the jury's presence that the statement was unnecessary to diagnose MJS's injuries and thus constituted hearsay. After the State's brief voir dire of Duralde, the trial court overruled the defense objection.

¶ 16 When the jury returned, the State continued its examination:

[THE STATE:] When you talked to [MJS]'s mother, [Rondeau], did she tell you about any possible causes of the injury?

[DURALDE:] Yes.

[THE STATE:] What did she tell you?

[DURALDE:] She told me that one of her children had told her earlier that day that the baby had been thrown against the wall.

[THE STATE:] Did she say how old the child was that told her that?

[DURALDE:] Her four-year-old.

RP (June 9, 2008) at 58-59. Duralde did not testify that RRR named Alvarez-Abrego as the one who threw MJS against the wall. But Duralde did testify that MJS's injuries "were consistent with someone hurting him as opposed to having experienced accidental injury" and ultimately concluded that "the history that fit[ ] his injury was that he had been thrown against the wall." RP (June 9, 2008) at 40-41.

¶ 17 Rondeau's oldest child, BEC, testified that, when Alvarez-Abrego was alone with the children, he would swing MJS around by his ankles and that he had done this on multiple occasions. Vicky Moore, Rondeau's neighbor who also occasionally cared for MJS, testified that on August 29 or 30 she heard "a sick cry, a hurt cry of pain" from MJS—different than she had ever heard before-and then the crying quickly stopped and it was "totally quiet. I didn't even hear the...