State v. Candia, No. 31690-1-II (WA 7/26/2005)

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Unpublished Opinion

STATE OF WASHINGTON, Respondent, v. RUBEN JUAREZ CANDIA, Appellant.

No. 31690-1-II

Court of Appeals of Washington, Division Two.

Filed: July 26, 2005

Appeal from Superior Court of Clark County. Docket No: 03-1-02006-1. Judgment or order under review. Date filed: 04/16/2004. Judge signing: Hon. Robert L Harris.

Counsel for Appellant(s), James J Sowder, Attorney at Law, 1600 Daniels, PO Box 27, Vancouver, WA 98666-0027.

Counsel for Respondent(s), Wendy Harmon Hanson, Clark County Prosecutors Office, 1200 Franklin St, PO Box 5000, Vancouver, WA 98666-5000.

BRIDGEWATER, J.

Ruben Juarez Candia appeals his four convictions for first degree child rape. This case parallels our recent decision in State v. Kirkman, 126 Wn. App. 97, 107 P.3d 133 (2005), where we held that where there were no physical signs of rape and where the physician and detective both rendered an opinion as to the victim's credibility, the opinions constituted errors of a constitutional magnitude. We further held that the errors could be raised for the first time on appeal and that we could not say that the errors were harmless.

Here, there were no physical signs of rape; there were no witnesses to the rapes; and there was only the testimony of the victim, who was age six at the time of trial. Candia denied any sexual contact. The question asked of the physician was essentially the same as in Kirkman and the physician testified about the victim's statements to him. The officer described her questioning methodology and concluded with the remark that she had the victim promise to tell the truth. Both witnesses then related the child hearsay that the victim gave them. We hold that these were opinions as to the victim's credibility and were constitutional errors. Because there was no physical evidence or eyewitness testimony, the error was not harmless. We reverse and remand for a new trial.

The testimony of the witnesses to the child's statements and the testimony of the child at trial detailed many instances of sexual contact that would have constituted first degree child rape. But, this trial was essentially a swearing match between the alleged victim and the alleged perpetrator. We focus on the testimony of the physician and the detective whose detailed statements of what the victim told them strengthened the State's case.

After establishing that there was no physical evidence of sexual contact, the State asked the physician the following question: `Do you have an opinion with medical certainty whether the findings you observed are consistent with the history of abuse you were given?' 2B Report of Proceedings (Feb. 2, 2004) at 251. Essentially, the physician was asked to reconcile the negative physical findings with the victim's statement. In Kirkman, the same physician was asked, `Based upon the physical examination, can you tell us whether you have an opinion within a reasonable degree of medical certainty of whether the physical examination was consistent with the girl's explanation of what occurred?' Kirkman, 107 P.3d at 135.

Here the physician responded, `So, you're asking how we could reconcile a normal examination with the story that she had been sodomized and that he had inserted something into her genitalia?' 2B RP at 251-52.

The State said, `{y}es.' 2B RP at 252.

The physician then responded, `Is that what you're asking? . . . I would say the findings — to have no findings after receiving a history like that is actually the norm rather than the exception.' 2B RP at 252.

The focus of the State's questions was the victim's statement, not the physician's examination. For example, the physician even discussed the victim's statement concerning penetration and stated that, `I would be very surprised if her assailant were able to actually insert his penis into her vagina.' 2B RP at 255. This is clearly a comment on credibility, albeit favorable to Candia.

Used in this manner, the physician's testimony bolstered the statements of the alleged victim. It, in essence, was to give the jury the opinion of the physician as to the credibility of the girl. This was improper opinion testimony under our holding in Kirkman.¹ See also State v. Luce, 137 N.H. 419, 628 A.2d 707 (1993).

Next, the detective also testified about what the victim had told her. The detective described a `competency' examination she administered. 2B RP at 310. The detective testified that she gauged the complaining child's ability to distinguish between a truth and a lie, and that she made the child promise to tell the truth. The detective's competency examination consisted of showing the child a series of worksheets with pictorial representations. She then explored whether telling the truth is a good or a bad thing with the child. The detective testified that, `And what their answer is, and I'll ask them why, and then I ask them, I remind them, that I'm there to talk about something very, very important with them, and I ask them to make a promise to tell me the truth.' 2B RP at 311. The detective then related what the child told her. As with the doctor, the detective did not affirmatively state that she believed or disbelieved the victim's allegations. However, as in Kirkman, the detective told the jury that she tested both the child's competency and her truthfulness and further, that the child was telling the truth when she talked to the detective.

The State contends that the jury had to decide credibility and whether the interview was credible. But our concern is not whether the jury was taken out of the equation but whether credible, well-intentioned, respected witnesses opined about the victim's credibility. And in this case, the jury's decision rested entirely on the child's credibility.

We hold that both the physician and the detective offered improper opinion testimony because there was no physical evidence and no eyewitnesses. Although there was no objection to the questions or the testimony, this testimony amounted to a manifest error within the meaning of RAP 2.5(a), and our review is warranted. Therefore, we employ the `overwhelming untainted evidence' test to determine if the error was harmless. State v. Guloy, 104 Wn.2d 412, 426, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020 (1986). Here, there was no evidence other than the statements of the victim and her statements to her physician and the detective. Her credibility was for the jury to decide. Because there was not overwhelming, untainted evidence to support Candia's conviction, the improper opinion evidence was not harmless.

We do not address the other errors Candia alleged because they relate to the conduct of the trial and evidentiary issues that may not arise again. The issue we address is dispositive.

Reversed and remanded for a new trial.

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 pursuant to RCW 2.06.040, it is so ordered.

MORGAN, J., Concur.

QUINN-BRINTNALL, C.J. (dissenting)

Ruben Candia was found guilty of four counts of first degree rape of a child, C.D. The trial included testimony from the doctor who examined C.D. at least three months after the rapes ceased. The doctor explained that a child can be raped without leaving long lasting trauma or permanent scarring. Candia's trial also included testimony from the detective who interviewed C.D. Before testifying to C.D.'s admissible hearsay allegations, the detective relayed that she asked C.D. to tell the truth and that, in the detective's opinion, C.D. was competent.

Following State v. Kirkman, 126 Wn. App. 97, 107 P.3d 133 (2005), the majority here concludes that by giving the testimony they did, the doctor and detective `essentially' testified, that they believed C.D.'s allegations. The majority then makes the dual conclusions that such testimony is `manifest error' which need not be preserved for review, and that such testimony requires reversal of Candia's convictions. But neither witness testified to their personal opinion as to the truthfulness of C.D.'s allegations; the doctor's testimony is admissible under evidence rules and case law; and the record reflects that Candia's counsel made a tactical decision in not objecting to the doctor's testimony. Moreover, in my view, Kirkman is partially distinguishable from the case at hand and improperly eschews analysis of (1) what is improper opinion testimony, and (2) what is error that may be raised for the first time on appeal. Accordingly, I respectfully dissent.

ANALYSIS

Improper Opinion Testimony

It is well settled that a witness may not offer a personal opinion as to the truthfulness of another witness or the guilt of the defendant. State v. Demery, 144 Wn.2d 753, 759, 30 P.3d 1278 (2001). This is so because `{t}he constitution has made the jury the sole judge of the weight of the testimony and of the credibility of the witnesses.' State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995) (quoting State v. Crotts, 22 Wash. 245, 250-51, 60 P. 403 (1900)). Washington case law is replete with examples of witnesses offering improper opinion testimony. See, e.g., State v. Black, 109 Wn.2d 336, 348, 745 P.2d 12 (1987) (in rape case where the defense was consent, improper for witness to testify that accuser suffered from rape trauma syndrome); State v. Dolan, 118 Wn. App. 323, 329, 73 P.3d 1011 (2003) (where only mother and father-defendant could have assaulted child, improper for witnesses to testify that they did not believe mother was the perpetrator); State v. Jerrels, 83 Wn. App. 503, 508, 925 P.2d 209 (1996) (mother testified that she believed her children were telling the truth when they accused their father of sexual abuse); State v. Carlson, 80 Wn. App. 116, 125-29, 906 P.2d 999 (1995) (witness opined that child had been sexually abused due to her behavior at interview).

But while it is improper to express an opinion as to another...