State v. Diese

STATE OF WASHINGTON, Respondent, v. LAWRENCE E. DIESE, Appellant.

No. 47432-8-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

May 2, 2017

UNPUBLISHED OPINION

LEE, J. — Lawrence E. Diese appeals his conviction for second degree rape-domestic violence. We hold that the trial court did not err, Diese received effective assistance of counsel, and there is no cumulative error. We also hold that Diese's arguments raised in a statement of additional grounds (SAG) fail. Accordingly, we affirm.

FACTS

A. THE INCIDENT

In 2008, Diese; his daughter, Kary Diese; his girlfriend, Juline Dual; Dual's daughter, N.B.¹; and Kary's friend, Tyler Lobes, lived together in Diese's home in Vancouver, Washington. Dual and N.B. lived with Diese from 2008 to 2009. During that time, Diese raped N.B. multiple times. Diese would pressure her to have sexual intercourse with him, and N.B. resisted at first,but was unsuccessful. The rapes occurred when N.B. was alone with Diese, and either after N.B. and Dual had an argument or N.B. got in trouble at school. N.B. did not tell anyone about the rapes at the time because she had always been afraid of Diese and was afraid the situation would get worse if she told. Also, Diese had thrown N.B. against a wall and given her a "fat lip" on one occasion. 3 Verbatim Report of Proceedings (VRP) at 224.

In May 2009, Dual and N.B. moved out of Diese's home after an argument between Diese and Dual. During that incident, Diese "grabbed [N.B.] by the scruff of the neck and threw her out the front door" and dragged Dual out of the home by her hair. 4 VRP at 347. Diese admitted to throwing N.B. and Dual out of his home in 2009.

In May 2013, Dual moved back in with Diese. N.B. was not happy that Dual had resumed her relationship with him and told Dual that Diese had raped her when they previously lived together. Dual did not believe N.B.

In January 2014, N.B. asked Dual if she could move in with Diese and Dual. Diese was against the idea, but he agreed after conditioning the move on N.B. staying short term, helping with chores, getting a job, going to counseling, and being in the house only when Dual was home.

After N.B. moved in, on February 23, Diese was upset that the house was dirty and that N.B. was not there to clean it. Diese later asked N.B. to go for a walk, during which Diese told her that she "had to do everything he said without argument." 3 VRP at 245. N.B., assuming that Diese was referring to housework, agreed.

When they returned home, Dual was gone, leaving Diese and N.B. home alone. N.B. sat on the couch and started an audio recording on her cell phone because she felt uncomfortable being home alone with Diese. Diese came up to N.B. and said that she "didn't live up to what he wasdeciding and what he wanted." 3 VRP at 252. Diese tightly grabbed N.B.'s hand and told her to get up. N.B. pulled back, but Diese started counting down. She was afraid of him because he had been violent before, so she got up. Diese led N.B. to the bathroom where he pulled down her pants and raped her while she cried. N.B. tried to push Diese away, but was unsuccessful. Afterwards, N.B. retrieved her phone and stopped recording. When Dual returned home, N.B. was crying, but she did not disclose the rape because Diese was still home.

On February 26, while Diese was at work, N.B. told Dual that she had proof Diese raped her and played the recording. The next day, N.B. played the recording for her counselor, who made her call the police. The police interviewed N.B. several times.

N.B. received a physical exam on February 27, where a 1mm hematoma on N.B.'s vagina was discovered. The hematoma was consistent with blunt force trauma; such injuries are not typical of non-assaultive sexual intercourse. The nurse stated that she would not expect to see that injury four days after the sexual contact N.B. described.

Also on February 27, Diese went to the Vancouver Police Department for questioning. There, Detective Anderson informed Diese that serious charges were brought against Diese so he had some questions. Diese then requested an attorney and was arrested. While Diese was being advised that he was being arrested for second degree rape and false imprisonment, he responded, "I didn't imprison anyone."² 3 VRP at 186. On the way to jail, Diese asked, "Does [N.B.'s] mother know?" 3 VRP at 186. The State charged Diese with second degree rape-domestic violence.

B. PRETRIAL PROCEEDINGS

1. Cell Phone Recording

Diese moved to suppress N.B.'s February 23 cell phone recording because he did not consent to being recorded. On the first part of the recording, N.B. and Diese are heard:

DIESE: (Inaudible). Drop them. Let's go. (Inaudible).

N.B.: I don't want to.

DIESE: (Inaudible).

N.B.: No, not that.

DIESE: (Inaudible).

N.B.: (Inaudible) and stuff.

DIESE: (Inaudible).

N.B.: No, not (inaudible).

DIESE: (Inaudible) without question.

N.B.: Okay. Well, I'll leave because I ain't doing that. You're my mom's boyfriend. You should be doing that with Mom, not me.

DIESE: I can do whatever I want how I want.

N.B.: Not with me.

DIESE: So I got to tell your mom now (inaudible) and get you out of here?

N.B.: I guess, because I'm not (inaudible).

DIESE: We shall see. You know you have nowhere to go. You have no one to help you.

N.B.: (Inaudible).

DIESE: Say again? Stand up.

N.B.: No.

DIESE: Come on. Get up. Let's go. Your pants are already halfway off. Let's go. Right now. Stand up. Come on. (Inaudible). Come on. (Inaudible). Come on. I'll hold your hand. Let's go. (Inaudible).

N.B.: (Inaudible).

DIESE: I'm going to count to three. One, two. Come on. (Inaudible).

1 VRP at 35-36. On the second part of the recording, only N.B. crying and the sound of running water are heard.

The trial court acknowledged that the recording was created without Diese's permission, but found that the first part contained a conversation in which Diese was extorting sexual activity from N.B. with threats of being homeless. The trial court reasoned that Diese's statement ("[Y]ou have nowhere to go. You have no one to help you"), in conjunction with N.B. crying and seemingupset throughout; N.B.'s statements ("I ain't doing that. You're my mom's boyfriend. You should be doing that with Mom, not me"); and Diese's mention of N.B.'s pants being down, showed that Diese's statements were threats of extortion and unlawful requests, and thus, admissible. The trial court also found that the second part of the recording only contained crying and the sound of running water. Since the second part did not contain any verbal conversation, it was not subject to RCW 9.73.030(1)(b).³ Thus, the trial court ruled that the recording was admissible under RCW 9.73.030(2)(b).⁴

2. Evidence of Diese's Prior Misconduct

The State moved to admit evidence that Diese raped N.B. from 2008-2009, and that he assaulted N.B. in 2008-2009. Diese objected and argued that evidence of prior misconduct was inadmissible under ER 404(b).

The trial court ruled that evidence of the prior rapes was admissible after finding that (1) the State established by a preponderance of the evidence the acts occurred because N.B. testified to the rapes in 2008-2009 and Diese did not want to be alone with N.B.; (2) the purpose of admission was to show (a) lustful disposition, because in "the period of time [Diese] had direct access to [N.B.], there were a number of sexual assault allegations, and then that period of time where he had limited to no contact . . . there were no allegations," and (b) a common plan or scheme, because the prior rapes and the rape for which Diese was charged "share the common feature, that the victim was isolated [and] pressured"; (3) the evidence was relevant and probative; and (4) the probative value outweighed the prejudicial effect. 10 VRP at 1139-1140. The trial court also ruled that evidence of the 2008-2009 assault was admissible after finding that (1) the State established by a preponderance of the evidence the acts occurred because three witnesses testified to the event; (2) the purpose of admission was to show forcible compulsion because the assault helped show why N.B. was afraid of Diese; (3) the evidence was relevant and probative to understanding why N.B. did not put up more resistance on February 23, 2014; and (4) the probative value outweighed the prejudicial effect.

3. Evidence of N.B.'s Prior Sexual Activity

Diese moved to admit evidence of N.B.'s prior sexual activity, which consisted of text messages sent before and after February 23, 2014, with sexually explicit photos of N.B. and references to sexual activities, including the mention of using a sex toy. Diese argued that the evidence would be used to prove Diese was not the cause of N.B.'s hematoma and to impeach N.B. on her prior statements.

The trial court found that the text messages did not directly admit that N.B. participated in other sexual activity around February 23, 2014 and that the most recent evidence of any sexual activity occurred over a month before on January 12, 2014. Therefore, the trial court ruled that the evidence was not relevant to proving the source of the hematoma and not admissible.

C. TRIAL PROCEEDINGS

At trial, N.B. testified that Diese raped her when she lived with him in 2008-2009; threw her into a wall, which resulted in a fat lip; threw her and Dual out of his home in May 2009; and raped her on February 23, 2014. Kary Diese and Tyler Lobes also testified to N.B. having a fat lip at one point. The trial court gave the jury a limiting instruction regarding the purpose of the evidence relating to the events in 2008 and 2009.

After N.B. testified, the State sought to introduce N.B.'s cell phone recording. Diese objected based on lack of proper foundation, but the trial court admitted and played the recording after finding that the recording was sufficiently identified and the proper foundation was laid.

Dual testified and stated that she received letters, cards, and a phone call from Diese while he was in jail. The State...