State v. Fields

553 P.3d 71

STATE of Washington, Respondent,

v.Christopher Michael FIELDS, Appellant.

No. 84811-9-I

Court of Appeals of Washington, Division 1.

Filed July 29, 2024

Honorable Ken Schubert, Judge.

Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appelant.

Gavriel Gershon Jacobs, Attorney at Law, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Respondent.

PUBLISHED OPINION

Coburn, J.

¶1 Christopher Fields was convicted by a jury of two counts of rape in the second degree after his wife, R.F., alleged that he raped her while she was asleep and unable to consent. Fields challenges the introduction of testimony from a licensed marriage and family therapist who conducted joint couples counseling sessions with Fields and R.F., arguing that it was introduced in violation of statutory privilege under RCW 5.60.060(9). Fields also contends that the State’s introduction of an audio recording of a conversation between himself and R.F. violates Washington’s privacy act. We agree, reverse and remand for a new trial.

FACTS

¶2 Fields and R.F. began dating in 2009. The two had an on and off relationship until R.F. became pregnant with the couple’s daughter in 2010. The pair did not have a "strong relationship" throughout R.F.’s pregnancy. The pair married in 2013 and lived together in R.F.’s home in Auburn.

¶3 Following the birth of their daughter in 2011, R.F. reports that Fields began to sexually assault her while she slept. R.F. testified at trial that she would wake up in the morning and find semen in her vagina when she and Fields had not had consensual sex. R.F. woke up to find Fields’ hand in her underwear and his fingers in her vagina on multiple occasions. In early 2016, R.F. was sleeping in the couple’s bed and woke to find Fields having sexual intercourse with her. R.F. shoved Fields off of her and started yelling that Fields had raped her. In another incident around May 2016, R.F. woke up to Fields’ fingers inserted into her vagina. R.F. testified that she had not given Fields permission to touch her while she slept.

¶4 In August, R.F. and Fields sought marriage counseling in an effort to improve their relationship by establishing boundaries and working on their communication. The two initially saw two different counselors, with R.F. seeing licensed marriage and family therapist, Nicolette Stenger, and Fields seeing a different male counselor. R.F. reported the sexual assaults to Stenger in individual sessions. In September 2016, the couple began to see Stenger together and participated in joint marriage counseling sessions. The two worked on setting boundaries in their counseling sessions.

¶5 In November and December 2016, while undergoing joint counseling, R.F. again awoke to find Fields’ fingers inserted in her vagina on multiple occasions. R.F. testified .that she worked with the counselor individually to "set a boundary" with Fields regarding his touching her while she slept because "[she] was not good at setting boundaries and maintaining [her] boundaries." In January 2017, R.F. and Fields discussed the matter in a joint counseling session. Fields and R.F. did not attend any further joint counseling sessions after January 6.

¶6 R.F. reported the assaults to Auburn police in May 2017. Fields was subsequently charged with two counts of rape in the second degree and proceeded to a jury trial.

Trial

¶7 In a motion in limine, Fields argued that the detective who took R.F.’s report at the police station should not be permitted to testify that R.F. had reported a "sexual assault" because it was inadmissible hearsay. The State agreed and the trial court granted the motion in limine. The detective testified that R.F. arrived in person to the police station with another person and that "they were there to report a sexual assault." Fields did not object.

¶8 Prior to trial, the State moved to admit two audio recordings of conversations between Fields and R.F, that R.F. had recorded on her cell phone. Fields moved to exclude one of the recordings under the Washington privacy act, chapter 9.73 RCW. Fields argued that the recording was made without his knowledge and permission and did not fit into any exceptions permitting it under the privacy act. The State argued that because Fields indicated his desire not to be recorded and expressed his worry that R.F. would attempt to blackmail him if the conversation was recorded, Fields was aware that he was being recorded and the privacy act did not prohibit the admission of the recording. After an evidentiary hearing in which R.F. testified to the circumstances of the recording, the court ruled

[Fields’] concern about being recorded, his willingness to say other things when he's not recorded, all demonstrate conclusively, in my view, that that part of the conversation was no longer private because he knew that it would be – or could be disclosed to third parties, and it was going to be therefore a public conversation.

So because it was not private, the consent does not need to be announced under RCW 9.73.030(3). In fact, 9.73.030 doesn’t apply at all because that only applies to private conversations. And from that moment on, it was not a private conversation, so the statute doesn’t apply.

The recording was admitted at trial, played multiple times, and discussed throughout the State’s opening and closing arguments.

¶9 The defense also opposed the State’s pretrial motion to introduce testimony from Stenger, Fields’ and R.F.’s licensed marriage and family therapist. The State argued that Fields’ and R.F.’s sessions with Stenger were not privileged under RCW 5.60.060(9) and that Fields had consented to use the records in a prior family law case, waiving any privilege. The defense argued that Fields had not waived the privilege and that the privilege prevented Stenger from testifying at trial. In response, the State argued that because the defense had requested and subpoenaed Stenger for records regarding R.F.’s treatment, Fields had waived the privilege. The State presented no evidence that Fields had done so. Defense counsel requested and was granted a brief recess to speak to his client. After going back on the record, defense counsel conceded that the statements were not privileged, stating

I didn’t represent him in the family law case. And as I'm starting to think about this concept, as you drew out, I mean, the fact that we’re holding these in our hand means somehow, they were produced. So if they’re out in the public sphere, and I just – I'm not going to get into privilege, but let’s just assume that I have knowledge that those were out in the public sphere in the family law court proceeding. That’s point one.

And point two, Ms. – this is a joint privilege with [R.F.], and I think there is case law, I don't know if the prosecution cited it, that if they're joint records and one of the spouses wants to put it in, it comes in.

So in any event, I think the fact that those exist waives the privilege.

¶10 At trial, Stenger testified that R.F. disclosed the sexual assaults in an individual counseling session. Stenger testified that in a January 6, 2017 joint counseling session, R.F. stated "I want to talk about the rape." Stenger testified that she had a "vague memory of [Fields] saying that he didn’t see it the same way [R.F.] did" and that though the couple agreed on the events that occurred, Fields did not see it as an assault. Stenger stated that Fields "agreed that he had started to have sex with [R.F.] while she was asleep." Stenger read from her summary of the session that Fields had stated "If we had sex more often, if that need was being met, maybe I wouldn’t wake up in the middle of the night having sex with you." Stenger had no independent recollection of the conversation and her recollection was refreshed using summaries of the joint sessions that she had written following the sessions. In addition to Stenger’s testimony, her summaries of the joint counseling sessions, including statements made by both Fields and R.F., were admitted into evidence.

¶11 At trial, R.F. testified that she was a "pretty heavy sleeper" and would "sleep like a log." R.F. stated that she would, however, wake up to the sounds of her children opening the bedroom door and the sounds of the family’s pet pig "walking across the wood floor." R.F. testified that being able to wake to those sounds may be "a mother thing" because she was able to sleep through other sounds, such as "neighbors, chain sawing, or having tractors, or somebody getting up and getting ready for work, or the dogs having to go out and go potty." R.F. testified that in the last two years of their marriage, she began drinking at the end of the day to cope with the stress of her life and relationship with Fields. R.F. stated that it began with having "a glass of wine," and eventually became "two glasses of wine," then "three glasses of wine," before "wine wasn’t enough" and she began drinking "White Russian" cocktails in the last year of the marriage. R.F. stated that the alcohol never caused her to be "in a blackout state" and that she "never drank to the extremity of not remembering."

¶12 R.F. testified that she knew Fields was assaulting her in her sleep because she "would wake up to having his hand down [her] underwear with his fingers in [her] vagina" while Fields masturbated, causing the whole bed to shake.

¶13 Fields testified that he was also asleep at the time of at least one of the alleged assaults and woke to find himself kissing R.F. Fields stated that based on the way R.F. was responding to his advances, he believed she was awake and consenting to sex, so he began to have sex with her. Fields also explained that his statements in the counseling session were not an admission to the assaults alleged by R.F., but were instead an attempt to follow the principles he learned in those therapy sessions. Fields explained that Stenger encouraged Fields and R.F. to use the ...