State v. Poindexter

STATE OF WASHINGTON, Respondent, v. CHRISTOPHER POINDEXTER, Appellant.

No. 81213-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 19, 2021

UNPUBLISHED OPINION

MANN, C.J. — Christopher Poindexter appeals his conviction of three counts of first degree child molestation and one count of second degree child molestation. He argues retrial is required because (1) the court admitted inadmissible hearsay, (2) his constitutional right to confront the witnesses against him was violated, (3) the court erred by admitting impermissible opinions from witnesses, and (4) the court prejudiced him by allowing an amendment to the charging document. We affirm.

FACTS

In May 2018, the State charged Poindexter with five counts of first degree child molestation and two counts of second degree child molestation for acts committed years earlier on his stepdaughters, J.D. and K.S. Trial began in November of 2019. J.D. and K.S., who were 21 and 18 years old respectively at the time of trial, both testified.

J.D. testified that when she, K.S., their mother, and Poindexter lived on Grove Street in Bellingham, "[e]verything was going normal, then it started to get weird." When J.D. was 10 or 11, she and Poindexter were watching television in his bedroom. Poindexter told J.D. to come closer, climb on top of him, and lay on him. J.D. complied. Poindexter held her hips and rubbed her behind against his genitals for 20 to 25 minutes. She told no one about it because Poindexter said to keep it just between themselves, and, as her father, she listened to him.

In early 2010, the family moved to a house in Sudden Valley. J.D. was now in sixth grade, and K.S. was in third grade. J.D. testified that when she was 12 or 13, Poindexter molested her again. K.S. testified that when they lived in Sudden Valley, Poindexter molested her 10 to 15 times, "like a routine." She was not yet 12. Poindexter would call her over to sit on his lap after he arrived home from work. He would caress K.S.'s body, including her vagina, over her clothes. Poindexter would also rub K.S. against his genitals, as he did to J.D. On several occasions, including once when J.D. and her mother were in an adjacent room, Poindexter open-mouthed kissed K.S. with his tongue. K.S. did not tell anyone about being molested.

After Poindexter and the victims' mother separated in 2014, J.D. and K.S. disclosed Poindexter's predations to each other. They did not tell their mother, however, because they were afraid of hurting her. J.D. continued to communicate with Poindexter because he "was all I had as a father, so I didn't want to lose it." They communicated through text or Facebook messages. Poindexter sometimes sent messages to J.D. that made her uncomfortable, such as calling her "hot stuff," asking what she was wearing, and asking for a picture of her wearing body paint. J.D.eventually showed the messages to her boyfriend, who told her to stop communicating with him because Poindexter was a "creep." J.D. texted Poindexter to say "good-bye" and explain her boyfriend's reaction. That strong reaction also prompted J.D. to disclose Poindexter's molestation.

J.D. and K.S. simultaneously disclosed to their mother that Poindexter molested them. The same day, their mother reported to the police that J.D. and K.S. had been molested. After a three-month investigation, Poindexter was arrested and charged.

During the State's case-in-chief, it moved to amend the information by dropping two charges against Poindexter and expanding the charging periods on the remaining counts. The court allowed the amendment over Poindexter's objection. Poindexter also objected to testimony from J.D. and her mother on hearsay grounds. The jury found Poindexter guilty on three counts of first degree child molestation, guilty on one count of second degree child molestation, and not guilty on one count of first degree child molestation.

Poindexter appeals.

ANALYSIS

A. Hearsay

Poindexter challenges testimony from J.D. and her mother as prejudicial and inadmissible hearsay. We disagree.

We review the court's decision to admit evidence for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 856, 83 P.3d 870 (2004). A court abuses its discretion when its decision rests on untenable grounds or reasons. State v. Lee, 188 Wn.2d 473, 486, 396 P.3d 316 (2017).

Hearsay is generally inadmissible. ER 802. "Whether a statement is hearsay depends upon the purpose for which the statement is offered. Statements not offered to prove the truth of the matter asserted, but rather as a basis for inferring something else, are not hearsay." State v. Garcia, 179 Wn.2d 828, 845, 318 P.3d 266 (2014).

Poindexter argues the court erred by letting J.D. testify to her boyfriend's reaction to Poindexter's messages. J.D. testified to her boyfriend's statements to explain why she finally disclosed Poindexter's history of abuse. J.D.'s boyfriend's statements were not admitted to prove the matter asserted and were, therefore, not hearsay. Garcia, 179 Wn.2d at 845.

Poindexter contends the court erred when the victims' mother was allowed to testify to statements made by J.D. and K.S. when disclosing Poindexter's abuse. A prior consistent statement admitted through ER 801(d)(1)(ii) "is not hearsay if it is consistent with the declarant's testimony and is used to rebut an allegation of recent fabrication." Peralta v. State, 191 Wn. App. 931, 952, 366 P.3d 45 (2015), rev'd on other grounds, 187 Wn.2d 888, 904, 389 P.3d 596 (2017).

In relevant part, the victims' mother testified:

That there had been instances where if she was alone with him that there, you know, it was suggested that she—and both cases—go change clothes or go change into something different other than pants, maybe shorts. There was touching, inappropriate touching. Having her—and this goes for both—to sit on his lap or come lay next to him. I can't recall the exact instances. . . . But that's, that was, you know, the brunt of what they had told me. And it was multiple instances, it wasn't just one or two times. . . . It had started in Grove Street . . . I don't recall, you know, bedrooms or places. They didn't go into that kind of detail. Sudden Valley it was like downstairs in the rec room, or, I'm not sure exactly what locations they were in.

. . . .They wanted to try to keep that semblance of normalcy. They also didn't know how to tell me. I asked them why, what took so long. They didn't know. They were scared. They didn't know how to tell me. They said they didn't know, either one of them, about the other's.

J.D. and K.S. both testified extensively about Poindexter's predations and testified about disclosing them to their mother, including why they did not disclose having been molested until years later. Poindexter cross-examined both victims and repeatedly questioned their recall of the years when they had been molested. Poindexter also asked many pointed questions to highlight inconsistencies between J.D.'s trial testimony, text and Facebook messages, and her pretrial interview responses. He did the same with K.S. It was apparent Poindexter's defense theory, as he explained in closing argument, was that J.D. and K.S.'s inconsistencies demonstrated they lied and had a motive to lie:

Kids don't lie, right? Kids don't lie. We heard that initially in this case. Kids don't lie and they should be believed. Well, we heard a different dimension of that, which is really the fundamental request the prosecutor makes that you believe for proof that kids don't lie and they have nothing to gain, ergo, Mr. Poindexter is guilty. That's essentially his argument: they have nothing to gain and that kids don't lie.

. . . .

Now, you have to ask yourself[,] are the hallmarks of credibility inconsistencies, internal [inconsistencies] with yourself? . . . Is that a hallmark of credibility? . . . Is a hallmark of credibility [a] complete lack of recollection of anything at all, anything at all in that time period by either alleged victim of anything else? One of the instructions says that you are the sole judges of credibility and can consider the manner in which someone testifies, their memory as to the alleged events.

. . . .

So, you have to ask yourself why would that attorney representing [Poindexter] illustrate that [J.D.] made additional allegations [in pretrial interviews] that she didn't say in testimony? Well, for the simple reason is that it illustrates, it illuminates, it demonstrates that she is not consistent. We have the same thing with [K.S.] as well.

The circumstances here are similar to Thomas. In Thomas, an employee convicted of burglary and murder argued that ER 801(d)(1)(ii) did not permit testimony from his girlfriend about having previously told others about his crimes because he did not allege she was lying. 150 Wn.2d at 830, 864-66. The girlfriend had helped the employee execute his plan to rob and murder his employer. Thomas, 150 Wn.2d at 831, 835-36. The girlfriend later told her sister and a friend that the employee had murdered and robbed his employer. Thomas, 150 Wn.2d at 837. The girlfriend later pleaded guilty to robbery and rendering criminal assistance in exchange for testifying against the employee. Thomas, 150 Wn.2d at 839. At trial, the girlfriend testified about the employee's role in the murder and about telling others of his role. Thomas, 150 Wn.2d at 864. On cross-examination, the employee asked a series of questions about the girlfriend's plea agreement and the sentenced she received. Thomas, 150 Wn.2d at 865-66. He also pointed out inconsistencies between the girlfriend's pretrial interviews and trial testimony. Thomas, 150 Wn.2d at 866. Because his series of questions implied she had a motive to fabricate her testimony, the Supreme Court held that ER 801(d)(1)(ii) applied. Thomas, 150 Wn.2d at 866.

Like Thomas, Poindexter's cross-examination was intended to demonstrate both victims were inconsistent because they had fabricated their allegations. ER 801(d)(1)(...