State of washington v. Frank and Frank, 95-1-00206-2

CourtCourt of Appeals of Washington
Decision Date23 March 1999
Docket Number95-1-00206-2

No. 15808-0-III No. 15818-7-III No. 16185-4-III
Washington Court of Appeals
Source of Appeal: Appeal from Superior Court of Okanogan County Docket No: 95-1-00206-2 Judgement or order under review Date filed: 05/10/1996 Judge signing: Hon. Kenneth L. Jorgensen
March 23, 1999
[7] Counsel: Counsel for Appellant(s) Paul J. Wasson Ii Attorney At Law 2521 W Longfellow Ave Spokane, WA 99205-1548 Jeffrey C. Barker Attorney At Law 115 S Chelan Wenatchee, WA 98801 Thomas E. Weaver Jr 569 Division St Ste E Port Orchard, WA 98366 Counsel for Respondent(s) Richard L. Weber Okanogan County Prosecutor P.o. Box 1130 Okanogan, WA 98840 Counsel for Other Parties Molly Roberts (Appearing Pro Se) Official Court Reporter PO Box 1361 Okanogan, WA 98840
[8] The opinion of the court was delivered by: Sweeney, J.
[9] Judges: Authored by Dennis J. Sweeney Concurring: Frank L. Kurtz Kenneth H Kato
[10] Panel Nine
[11] [Editor's note: originally released as an unpublished opinion]
[12] Curtis Frank and Laura Frank are married. Mr. Frank was charged with three counts of child molestation in the first degree, while Ms. Frank was charged with one count of child molestation in the first degree and one count of tampering with a witness. They were tried together and represented by the same trial lawyer. The jury found Mr. Frank guilty on one count of child molestation in the first degree, and Ms. Frank guilty as charged. In this consolidation of appeals, Mr. and Ms. Frank assign error to a series of the court's pretrial, trial, and posttrial rulings. We find no error and affirm.
[13] FACTS
[14] Procedure. Curtis Frank was charged with three counts of child molestation in the first degree for sexual contact with his stepchildren, G.M., C.M., and J.M. Laura Frank was charged with one count of child molestation in the first degree for her sexual contact with her son, C.M., and one count of tampering with a witness. Ryan Whitaker, appointed counsel for Ms. Frank, told the court that he would represent both Mr. and Ms. Frank in the consolidated trial. Mr. Whitaker represented that the defense would be the same, that he discussed dual representation with both defendants, and that they both consented.
[15] The trial court, pursuant to RCW 9A.44.120, heard testimony regarding the admissibility of prior statements made by the child victims. Brian Morgan and Karen Winston, both experts for the State, testified about disclosures made to them by C.M. and J.M. of sexual contact with Mr. and Ms. Frank. The court ruled that the hearsay disclosures were admissible. The court also found that both child victims under the age of 10 were competent to testify based on their testimony. At the time of trial, G.M. was 10 years old, C.M. was 9 years old, and J.M. was 8 years old.
[16] Following the trial and pursuant to a written stipulation signed by both defendants, Judge Pro Tem David Edwards accepted the jury's verdict. The jury found Mr. Frank guilty on one count of child molestation in the first degree. It found Ms. Frank guilty of child molestation in the first degree and tampering with a witness. The court ordered that execution of the Judgement be stayed for Ms. Frank.
[17] Substantive Facts. During their marriage, Mr. M. and Laura Frank had four children: M.M., G.M., C.M., and J.M. They were divorced in May 1993. Their relationship was strained. Custody was hotly contested. Mr. M. was awarded custody and Ms. Frank was awarded visitation.
[18] In March 1995, M.M. was caught having sexual contact with his younger sister J.M. M.M. pleaded guilty and was sent to a juvenile institution. After this incident, Mr. M.'s present wife spoke to J.M., C.M., and G.M individually. J.M. and C.M. reported "other things going on" involving sexual abuse by Mr. Frank. Although Ms. M. had to "press" her to open up, G.M. made a similar disclosure. Sandra Nelson, a child and family mental health specialist, met with J.M., C.M., and G.M. Ms. Nelson gave the children a chance to say whatever they wished. But none reported molestation by Mr. or Ms. Frank.
[19] In November 1995, J.M., C.M., and G.M. were taken to Deaconess Medical Center for medical examinations and interviews. The children met separately with Karen Winston, a forensic interviewer, and Brian Morgan, a psychotherapist and consultant. J.M. told Ms. Winston that Mr. Frank touched her privates when she was five years old and someone else touched her when she was six years old. J.M. said that Mr. Frank showed his "wiener dog" and touched her privates with his hand.
[20] C.M. told Ms. Winston that Mr. Frank would come into his bedroom at night and touch him and his sisters "{w}ith his crotch." C.M. told Mr. Morgan that Mr. Frank had "done something bad." C.M. then reluctantly explained that "{h}e put his crotch on my crotch" and he "would move around and go up and down." C.M. said Mr. Frank would climb up to M.M.'s bunk (M.M. had the top bunk of the bunk beds). When Mr. Frank was in M.M.'s bunk, C.M. said "{y}ou could hear them moving up and down and shaking the beds." C.M. also stated Mr. Frank molested J.M. and G.M. Sometimes Mr. Frank would take C.M.'s pants off while he was sleeping. When asked by Mr. Morgan, C.M. said Mr. Frank's "penis was hard and big{.}" Physicians examined the children but found no physical evidence of molestation.
[21] On December 16, 1995, the children had a four-hour supervised visit with Ms. Frank. Upon returning home after the weekend visitation, C.M. blurted out: "Mom said 'I am going to go to jail too if you don't stop talking.'" Mr. and Ms. M. spoke with the children, with both C.M. and G.M. reporting other incidents of sexual abuse.
[22] The children again met with Mr. Morgan and C.M. reported that his maternal grandfather and grandmother also molested him. C.M. told Mr. Morgan that his mother, Ms. Frank, also touched his privates by pulling down his pants and putting his penis in her crotch. Ms. Frank would also climb up to M.M.'s bed and "do the same thing {Mr. Frank} did to {M.M.}" C.M. was afraid to tell anyone because "if I told, she would be put in jail." C.M. further told Mr. Morgan that during the December 16 visitation, Ms. Frank told him: "If you keep on telling lies, I am going to be in jail."
[23] G.M., J.M., and C.M. all testified at trial. G.M. and J.M. testified that both Mr. and Ms. Frank touched their private parts several times. G.M. said that Mr. Frank would also touch J.M.'s private parts. Ms. Frank told G.M. not to tell anyone about the touching. C.M. also stated that Mr. and Ms. Frank touched his privates. Mr. Frank touched C.M. with his privates and Ms. Frank touched her crotch to his crotch. All three children stated that the inappropriate touching occurred when they visited their mother's apartment. In addition, C.M. stated that Ms. Frank told him: "If you make stuff up, that they will - she will be in jail too."
[24] M.M. denied any sexual abuse by Mr. or Ms. Frank. Ms. Frank testified that she never crawled on any of the children or touched them in a sexual manner. Mr. Frank testified but was never asked whether he sexually touched the children.
[25] Mr. Frank appeals his conviction (No. 15808-0-III); Ms. Frank appeals her convictions (No. 15818-7-III) and the order revoking the stay of execution of Judgement (No. 16185-4-III). All three appeals have been consolidated.
[27] Right of Confrontation. Mr. and Ms. Frank contend that the trial court denied their right of confrontation by allowing the prosecutor to stand between them and J.M. during direct examination.
[28] The Sixth Amendment of the United States Constitution provides "the accused shall enjoy the right . . . to be confronted with the witnesses against him."*fn1 The confrontation clause guarantees the defendant a face-to-face meeting with witnesses. Coy v. Iowa, 487 U.S. 1012, 1016-17, 108 S. Ct. 2798, 101 L. Ed. 2d 857 (1988); State v. Swan, 114 Wn.2d 613, 668, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991). But Ms. Frank was not charged with molesting J.M. And Mr. Frank was acquitted of molesting J.M. Therefore any error here was harmless. See Coy, 487 U.S. at 1022; Smith v. State, 111 Nev. 499, 894 P.2d 974, 976-77 (1995).
[29] Effective Assistance of Counsel. Both Mr. and Ms. Frank contend they were denied effective assistance of counsel by trial counsel's "tactical" decisions throughout the trial. Review of their complaint is de novo. State v. White, 80 Wn. App. 406, 410, 907 P.2d 310 (1995), review denied, 129 Wn.2d 1012 (1996). To establish a claim of ineffective assistance of counsel, the defendant must show that counsel's performance was deficient and that, by a reasonable probability, the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To show prejudice, there must be a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Lord, 117 Wn.2d 829, 883-84, 822 P.2d 177 (1991), cert. denied, 506 U.S. 856 (1992). We presume that counsel's representation was effective. State v. Brett, 126 Wn.2d 136, 198, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). We also presume that counsel made all significant decisions in the exercise of reasonable professional Judgement. Accordingly, if the decisions relate to his theory of the case or can be seen as trial tactics, they are not grounds for a claim of ineffective assistance. State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994).
[30] Mr. Frank argues that his lawyer should have proposed the separate defendant instruction (WPIC 3.03) because this case involved multiple defendants and multiple counts. He is mistaken. The jury was instructed that a separate crime was charged in each count and it was to decide each count separately. Since this is the essential

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