State v. Weatherman, 46328-8-II

STATE OF WASHINGTON, Respondent, v. LARRY DEAN WEATHERMAN, Appellant.

No. 46328-8-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

October 27, 2015

UNPUBLISHED OPINION

WORSWICK, J. — A jury found Larry Weatherman guilty of six counts of first degree incest¹ and also found that the state had proved two aggravating factors: domestic violence with an ongoing pattern of abuse,² and abuse of a position of trust. He appeals his convictions and sentence, arguing (1) the trial court denied him a fair trial when it excluded evidence that N.W. was previously abused by her stepbrother and did not disclose any report of abuse by Weatherman during the course of that investigation; (2) his trial counsel was ineffective; and (3) the trial court erred when it sentenced him to an exceptional sentence. Weatherman also raises several issues in his statement of additional grounds (SAG). We hold that Weatherman was afforded a fair trial, that his counsel was not ineffective, and that his sentence was not improper. Accordingly, we affirm.

FACTS

I. BACKGROUND FACTS

N.W. had no contact with her biological father, Larry Weatherman, until 1996 when she was 11 years old. When N.W. was 12 years old she began having overnight and weekend visits with Weatherman at his home.

N.W. testified at trial that on Halloween night in 1997 Weatherman touched her vagina under her Snow White costume while the two of them were in Weatherman's van. According to N.W. this act began a pattern of sexual abuse over the next seven years that escalated from initial fondling, to digital penetration, to oral sex, to penile penetration. N.W. testified that during her high school years Weatherman had some form of sexual contact with her nearly every night.

N.W. also testified that when Weatherman's wife, Syndee,³ moved out of the home for several months, Weatherman forced N.W. to take on Syndee's role as wife. This involved making Weatherman's breakfast, packing his lunch for work, making dinner, sharing his bed, and taking baths and showers together. N.W. testified that throughout the abuse Weatherman would frequently ask her, "You love your Dad, right?" Verbatim Report of Proceedings (VRP) at 133. N.W. testified that when she attempted to leave, Weatherman made her feel guilty by making comments such as "[w]ell, you don't love me anymore. You don't love me and I'm just going to shoot myself with 100 units of insulin." VRP at 152. N.W. moved out of Weatherman's house in 2004. N.W. disclosed the abuse in 2011.

II. PROCEDURAL FACTS

The State charged Weatherman with six counts of first degree incest for incidents that occurred between July 27, 2002, and September 4, 2005. Each count contained a domestic violence designation and notified Weatherman that the State would be seeking an exceptional sentence based on two aggravating circumstances: (1) the defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense, RCW 9.94A.535(3)(n); and (2) the crime was a domestic violence offense and was part of an ongoing pattern of psychological, physical, or sexual abuse of a victim or multiple victims manifested by multiple incidents over a prolonged period of time. RCW 9.94A.535(3)(h)(i).

Before trial, the parties presented motions in limine. The State moved to exclude evidence of prior allegations of sexual abuse by others against N.W. Weatherman opposed the motion arguing that he planned to introduce evidence going to N.W.'s credibility based on her failure to disclose any sexual abuse by Weatherman despite the opportunity to do so during an investigation into sexual abuse by N.W.'s stepbrother.⁴ Weatherman's offer of proof was that in the course of his investigation, Officer Prather would have asked if anyone else was sexually abusing her, and that his report showed no notes of other abuse at that time. The trial court granted the State's motion, ruling that the proffered evidence was barred by the rape shield statute and was irrelevant. However, the trial court explicitly left open the possibility for Weatherman to argue at trial that N.W. had the opportunity to disclose and did not.

During jury deliberations, the jury sent the court five questions, the first of which is germane to this case. The jury asked, "If we find one count unanimous do all additional countshave to be unanimous?" Clerk's Papers (CP) at 132. In discussing this question with the parties the court commented as follows:

[JUDGE]: . . .The first question is, if we find five count—if we find one count unanimous, do all additional counts have to be unanimous? And the answer to that is yes. And, it's whether you want me to tell them yes or whether you want me to refer to the instructions they've been given.

VRP at 457. The parties agreed that their preference was for the judge to respond, "Refer to the instructions." VRP at 457.

The jury returned guilty verdicts for each incest count, along with special verdicts that (1) defendant and N.W. were "members of the same family or household," (2) defendant committed the offenses using a "position of trust to facilitate the commission of the crime[s]," and (3) the crimes were "part of an ongoing pattern of psychological, physical, or sexual abuse of the victim . . . manifested by multiple incidents over a prolonged period of time." CP at 135. Weatherman's counsel requested that the jury be polled to confirm the jurors understood that they needed to be unanimous for six separate and distinct incidents. The court conducted polling and counsel was satisfied.

The court sentenced Weatherman to 100 months on each count within a standard range of 77 to 103 months on each count. But based on the aggravating factors, the trial court ordered three counts to run consecutively and three counts to run concurrently, for a total of 300 months.

Weatherman appeals his convictions and sentence.

ANALYSIS

I. RIGHT TO A FAIR TRIAL

Weatherman argues that the trial court violated his right to a fair trial when it excluded evidence that N.W. did not report any abuse by Weatherman during a previous sexual abuse investigation into N.W.'s stepbrother. We disagree.

Weatherman sought to introduce evidence of the prior sexual abuse investigation involving N.W.'s stepbrother for the purpose of attacking N.W.'s credibility by showing that N.W. had the opportunity to disclose abuse by Weatherman but did not. Weatherman argues that the trial court erred by excluding this evidence as irrelevant and prohibited by the rape shield statute. He argues that the exclusion of this evidence violated his constitutional right to present relevant evidence. We hold that the trial court erred because the rape shield statute does not apply to incest cases, and we assume without deciding that the excluded evidence was relevant. Nonetheless, we hold that excluding this evidence was harmless error.

Both the federal and state constitutions protect the right to a fair trial, to confront the State's witnesses, and to present a defense. U.S. CONST. amend. VI; WASH. CONST. art. I, § 22; State v. Jones, 168 Wn.2d 713, 720, 230 P.3d 576 (2010). "'A defendant in a criminal case has a constitutional right to present a defense consisting of relevant evidence that is not otherwise inadmissible.'" State v. Cuthbert, 154 Wn. App. 318, 336, 225 P.3d 407 (2010) (quoting State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)). Where a jury's decision to believe or not believe a single witness is particularly important to the outcome of the case, the witness's credibility "'must be subject to close scrutiny.'" State v. Perez-Valdez, 172 Wn.2d 808, 822, 265 P.3d 853 (2011) (quoting State v. Roberts, 25 Wn. App. 830, 834, 611 P.2d 1297 (1980)).Nonetheless, the admission or refusal of evidence lies largely within the sound discretion of the trial court; its decision will not be reversed on appeal absent an abuse of discretion. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). There is abuse of discretion when the trial court's decision is manifestly unreasonable or based on untenable grounds or reasons, such as the misconstruction of a rule. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).

A. Evidentiary Issues

Weatherman argues, and the State concedes, that the trial court erred when it ruled that evidence showing N.W. did not disclose Weatherman's abuse during an investigation into sexual abuse by her stepbrother was not admissible under RCW 9A.44.020, the rape shield statute. We agree.

Washington's rape shield statute excludes evidence of a sexual assault victim's past sexual behavior on the issue of consent and limits such evidence's use to prove the victim's consent. RCW 9A.44.020(1), (3). The rape shield law should not be used to exclude evidence that an alleged child victim had previously been abused. State v. Kilgore, 107 Wn. App. 160, 177, 26 P.3d 308 (2001), aff'd, 147 Wn.2d 288, 53 P.3d 974 (2002). This rule is based, in part, on the fact that children are incapable of consenting to a sex act, therefore admission of prior sexual abuse is not prejudicial to the victims nor does it tend to discourage prosecution. See State v. Carver, 37 Wn. App. 122, 124, 678 P.2d 842 (1984). Instead, courts should use "general evidentiary principles" and balance the probative value of the past sex abuse evidence against its possible prejudice. Kilgore, 107 Wn. App. at 177. Consent is never an issue in incest. RCW 9A.64.020. Thus, the trial court erred in applying the rape shield statute to exclude evidence thatN.W. was previously sexually abused by her stepbrother and did not disclose Weatherman's abuse at that time.

The State argues that even though the trial court erred in excluding the evidence under the rape shield law, exclusion of the evidence can be sustained because it was irrelevant. We assume without deciding that the evidence was relevant as to N.W.'s credibility.

B. Exclusion of the Evidence Was Harmless

Weatherman asserts that...