State Of Wash. v. Collett
| Decision Date | 05 October 2010 |
| Docket Number | No. 39523-1-II,No. 39515-1-II,39515-1-II,39523-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JAVONTE MARCHE COLLETT and DEZMOND DARBY-CHACON, Appellants. |
UNPUBLISHED OPINION
A juvenile court adjudicated Javonte Collett and Dezmond DarbyChacon guilty of indecent liberties and second degree rape of "Jane."1 Collett argues that the juvenile court abused its discretion when it admitted statements from Jane to her friend "Sarah"2 under the excited utterance exception to ER 802. Darby-Chacon argues that (1) the State's late submission of findings of fact and conclusions of law allowed it to tailor the findings and conclusions in response to his arguments on appeal, (2) sufficient evidence does not support the finding that he used forcible compulsion when he digitally penetrated Jane, and (3) sufficient evidence does not support the finding that he and Jane were not married. We affirm.
At 10:00 pm on November 13, 2008, Jane sneaked out of her house through her bedroom window to watch movies with Darby-Chacon, Darby-Chacon's older sister, 3 and Collett at Collett's apartment.4 She took along a condom because she felt "that something wasn't right" and "if something did happen, you know, it would be safe." Report of Proceedings (RP) at 20. When she arrived at Collett's apartment, Darby-Chacon's sister was not there. Jane considered leaving but realized that she needed help to sneak back into her bedroom. The three watched a movie in Collett's room while sitting on his mattress.
Collett tried to kiss and touch Jane, which she discouraged. Collett also encouraged her to perform oral sex on them, which she declined.5 Darby-Chacon then dropped his pants, 6 Collett put pornography on the television, and Darby-Chacon began to masturbate. Jane testified that Collett took her wrist and used her hand to stimulate Darby-Chacon's genitals, which she unsuccessfully resisted. Then Collett took her other wrist and forced her to stimulate his genitals at the same time. Jane tried to remove her hands but could not overcome Collett's resistance.
Next, Darby-Chacon and Collett removed Jane's clothes, 7 while she verbally protested and resisted. Then, Collett and Darby-Chacon took turns restraining her and committing forceful sex acts against her, including digital penetration and masturbation by Darby-Chacon and penile penetration by Collett.8 Later, the boys took Jane home and helped her sneak back into her bedroom around 1:00 am.
Jane testified that, once home, she felt "[d]isgusted" by what had happened. RP at 47. In the morning she took a shower and, when asked, told her 10 year old cousin that she had only watched movies the night before.9 At the bus stop, and on the bus to school, she spoke to DarbyChacon's sister and realized that his sister had not known anything about a plan to watch a movie on the previous night.
At school Jane felt as though she "wanted to die" and she told her best friend Sarah what had happened. During first period, Jane's teacher sent her out of the classroom because she was crying. During second period, Jane sat next to Sarah; she told Sarah more about what happened; she cried more; and the teacher gave Jane a note telling her "to either go to the bathroom or go to the counselor's office." RP at 51. At Sarah's prompting, during lunch Jane told a teacher what had happened the night before; the teacher had Jane tell a counselor and the counselor contacted police. Jane testified that, when she spoke to Lacey Police Detective Steve Brooks, she RP at 53. The State charged Darby-Chacon with second degree rape and two counts of indecentliberties. It charged Collett with indecent liberties and two counts of second degree rape.
At trial, Sarah testified that she saw Jane sitting "against the cafeteria wall" and she looked "completely upset and [was] bawling her eyes out." RP at 87. According to Sarah, Jane RP at 88. During second period, Jane "was a little bit more under control, but when she started talking about it again telling me the rest of the story, she broke down again." RP at 88. Sarah then testified about what Jane had told her.10 Sarah corroborated most of Jane's testimony, but Sarah (1) omitted any mention of digital penetration and (2) stated that Darby-Chacon "raped" Jane while Collett held her down. RP at 96-97.
Brooks testified that the police obtained a search warrant for Collett's apartment and that it looked as Jane had described it. During the search, Brooks found specific objects she had mentioned to him.
In an interview with Lacey Police Officer David Miller, Darby-Chacon told Miller that he had asked Jane whether she would have sex with them and that, after she said no, "they continued to have sex with her." RP at 120. Darby-Chacon acknowledged to Miller that Jane told them that she did not want any of the sexual acts to occur and that they used force to accomplish them. In an unrecorded conversation, Collett told Miller that Jane did not want to have sex but, in arecorded conversation, Collett told Miller that "she just said no to the threesome, so [Collett] was not sure if she wanted to have sex with him." RP at 129.
According to Collett, Jane volunteered that she had a condom when Collett asked DarbyChacon if he had one. He claimed that he did not physically cause Jane to stimulate them. He also explained that when he asked Jane "if either of us would have sex, and she said, 'If you're lucky.'" RP at 153. He testified that Jane first declined to engage in a threesome but that she eventually consented: RP at 154. He also claimed that she willingly allowed him to have vaginal intercourse with her, 11 and that Darby-Chacon only straddled her torso after intercourse had begun. DarbyChacon's testimony was substantially similar to Collett's testimony.12 Before closing arguments, Darby-Chacon and Collett unsuccessfully moved to dismiss the indecent liberties charges because the State failed to present evidence that Darby-Chacon and Collett were not married to Jane.
The juvenile court adjudicated Collett guilty of the indecent liberties charge and the two second degree rape charges. It adjudicated Darby-Chacon guilty of second degree rape and theindecent liberties charge based on Darby-Chacon using Jane's breasts to masturbate. The court dismissed Darby-Chacon's other indecent liberties count because the State did not prove beyond a reasonable doubt that Darby-Chacon forcibly compelled Jane to stimulate him.
Darby-Chacon and Collett appeal.13
Collett argues that the juvenile court abused its discretion when it admitted hearsay statements Jane made to Sarah because Jane made those statements after having time to reflect. Collett also argues that this admission was not harmless because the testimony affected the juvenile court's credibility determination in a close case.
We review a trial court's determination of whether a statement falls under the excited utterance exception for abuse of discretion. State v. Thomas, 150 Wn.2d 821, 854, 83 P.3d 970 (2004), abrogated in part on other grounds, Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Thus, we will not disturb the trial court's ruling unless "no reasonable judge would have made the same ruling." Thomas, 150 Wn.2d at 854.
Hearsay statements are admissible under the excited utterance exception if they are (1) related "to a startling event or condition" and (2) "made while the declarant was under the stress of excitement caused by the event or condition." ER 803(a)(2); State v. Hardy, 133 Wn.2d 701, 714, 946 P.2d 1175 (1997). The declarant must make the statement while still "under the influence of external physical shock" and without "time to calm down enough to make acalculated statement based on self-interest." Hardy, 133 Wn.2d at 714. The declarant must make the statement while so "'under the influence of the event... that [the] statement could not be the result of fabrication, intervening actions, or the exercise of choice or judgment.'" State v. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992) () (quoting Johnston v. Ohls, 76 Wn.2d 398, 406, 457 P.2d 194 (1969)), abrogated in part on other grounds, Crawford, 541 U.S. 36. Courts generally consider (1) the amount of time between the event and when the declarant makes the statement and (2) the declarant's observable level of emotional stress when making the statement. See, e.g., Strauss, 119 Wn.2d 416-17. "The passage of time alone, however, is not dispositive." Strauss, 119 Wn.2d at 417.
In Strauss, our Supreme Court held that a rape victim was still under the influence of the incident when she made the statement even though more than three hours may have passed. 119 Wn.2d at 416-17. There, the victim appeared to be in a state of shock; the officer described the victim as "very distraught, very red in the face and crying."14 Strauss, 119 Wn.2d at 416. Similarly, a statement made in a record that indicated a range of six to seven hours after an event can still be an excited utterance where the declarant is still under the stress of that event. State v. Thomas, 46 Wn. App. 280, 282, 284-85, 730 P.2d 117 (1986), aff'd, 110 Wn.2d 859, 757 P.2d 512 (1988); State v. Flett, 40 Wn. App. 277, 278-79, 287, 699 P.2d 774 (1985).
In Flett, the trial court properly admitted the victim's statement as an excited utterance when she made the statement after going to work following the assault on her and around sixhours passed before she made the statement. 40 Wn. App. at 278-79, 287. In both Strauss and Flett, the record reflected the...
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