State v. Amezcua, No. 22239-0-III (WA 10/26/2004)
| Decision Date | 26 October 2004 |
| Docket Number | No. 22239-0-III,22239-0-III |
| Court | Washington Supreme Court |
| Parties | STATE OF WASHINGTON, Respondent, v. VOGAR'D CHARLES AMEZCUA, aka JOSE ANGEL PONCE VELA, Appellant. |
Appeal from Superior Court of Stevens County. Docket No. 02-1-00243-3. Judgment or order under review. Date filed: 07/02/2003. Judge signing: Hon. Larry M Kristianson.
Counsel for Appellant(s), Vogard Charles Amezcua (Appearing Pro Se), #857313, 1313 N. 13th Ave., Walla Walla, WA 99362.
Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.
Counsel for Respondent(s), John Gerard Wetle, Attorney at Law, 215 S Oak St, PO Box 390, Colville, WA 99114-0390.
This appeal follows convictions for child rape, child molestation, and possession of depictions of minors engaged in sexually explicit conduct. Vogar'd Charles Amezcua makes a number of assignments of error, including failure to instruct the jury on the requirement of unanimity. But, given the evidence, Mr. Amezcua's defense of general denial, and the State's arguments, we conclude there was no need for the instruction and in one instance that the failure to give the instruction was harmless in any event. We reject the other assignments of error and affirm the convictions.
In November 2002, the mother of eight-year-old D.H. saw him in sexually inappropriate behavior with his six-year-old sister. Following up on this and other disturbing incidents, she elicited from D.H. that Vogar'd Charles Amezcua, a trusted family friend, had shown him pornographic images on the Internet and sexually molested and raped him. The details of the rape and molestation are not at issue on appeal and need not be recounted here.1 D.H.'s mother reported the matter to the police.
Detective Fran Lynn prepared a search warrant affidavit for Mr. Amezcua's residence based on forensic interviews with the mother and the child and an investigation of Mr. Amezcua's criminal history. The affidavit included explicit and graphic details of sexual abuse by Mr. Amezcua as related by D.H. to his mother. Besides sexual acts, D.H. said Mr. Amezcua had shown him pornography images on his computer.
Detective Lynn corroborated the mother's report in a forensic interview with the child. Detective Lynn then confirmed some objectively verifiable details of the child's report with the mother—a hike in the country, for example. Additional details were corroborated with third parties, such as that Mr. Amezcua had looked after the family dog. A background check on Mr. Amezcua revealed that he had twice been acquitted on charges of first degree sexual abuse in Oregon, and was suspected of similar conduct in Stevens County for which no charges were filed. The affidavit was backed up by copies of police reports and verbatim excerpts of Detective Lynn's interviews with D.H., his mother, and his 11-year-old sister.
A search warrant was issued and was executed on December 13, 2002. Mr. Amezcua's computer was seized. Detective Keith Huntley of the Washington State Patrol Computer Crimes Unit retrieved 23 images from the computer. Those images form the basis for the depiction charges. Detective Huntley noted the sophistication of the file organization. Some of the images had been encrypted or deleted, but could still be accessed using recovery software.
The State charged Mr. Amezcua with three counts of first degree child rape of an eight-year-old boy, D.H.; one count of first degree child molestation of D.H.; and 23 counts of possessing depictions of minors engaged in sexually explicit conduct with sexual motivation.
Mr. Amezcua moved to suppress the evidence seized through the search warrant. He claimed that the warrant affidavit failed to set forth sufficient indicia of reliability for the child informant. The court denied the motion. The court also ruled that D.H. was competent to testify and that D.H.'s statements to his mother and to Detective Lynn would be admissible at trial. A three-day jury trial followed. After the court had read the jury instructions to the jury, counsel and the court discussed the best way to correlate the elements instructions with the corresponding charges in the information. Defense counsel suggested that the court make interlineations on the instructions it had read. The court agreed and wrote on the instructions the words `by anal/penis penetration' in the instruction for count 1, `by digital/anal penetration' in the instruction for count 2, and `by oral/genital contact' in the instruction for count 3. The judge told counsel he would inform the jury of the changes made to the instructions. Both counsel were satisfied. The court brought the jury back in and informed it of the changes and instructions as modified. Counsel then moved to closing arguments. The jury found Mr. Amezcua guilty on all counts and found, by special verdict, each depiction count was with sexual motivation. The judge declined the State's request for an exceptional sentence and sentenced Mr. Amezcua at the top of the standard range on all counts.
Mr. Amezcua contends that the warrant affidavit contained no evidence corroborating the victim's statements. Therefore, he contends, there was no probable cause to issue a search warrant for his computer. We review a challenge to the probable cause supporting a search warrant de novo. In re Det. of Petersen, 145 Wn.2d 789, 799-800, 42 P.3d 952 (2002). We view the affidavit in a commonsense fashion and give great deference to the issuing magistrate. State v. Vickers, 148 Wn.2d 91, 108-09, 59 P.3d 58 (2002). Any doubt as to the sufficiency of the affidavit we resolve in favor of the State. State v. Clark, 143 Wn.2d 731, 748, 24 P.3d 1006 (2001).
The affidavit must contain on its face sufficient facts to establish probable cause. State v. Patterson, 83 Wn.2d 49, 52, 515 P.2d 496 (1973). Its statement of underlying facts and circumstances must be comprehensive enough that the issuing magistrate can undertake a detached and independent evaluation. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999); State v. Spencer, 9 Wn. App. 95, 96-97, 510 P.2d 833 (1973). Probable cause for a search warrant means simply the probability of criminal activity, not a prima facie case. State v. Carver, 51 Wn. App. 347, 350-51, 753 P.2d 569 (1988). The evidence cited need not be admissible at trial; it can be hearsay. Id. at 350. It is sufficient if the facts and circumstances described establish a reasonable inference of criminal activity and that evidence exists at the place to be searched. Vickers, 148 Wn.2d at 108 (quoting Thein, 138 Wn.2d at 140).
Mr. Amezcua relies on Carver for the proposition that the warrant affidavit was deficient because it was based on the statements of a child informant whose reliability was not established in the manner required of an adult informant. Carver does not apply.
First, probable cause for this search warrant did not depend on an informant's tip at all. It was based on the direct report of the victim of a personal crime and the ensuing police investigation. Unlike a third party informant, the victim-witness is presumed to be reliable. State v. Jones, 85 Wn. App. 797, 934 P.2d 1224 (1997); compare State v. Allen S., 98 Wn. App. 452, 989 P.2d 1222 (1999), in which a jailhouse informant tipped off the police that the defendant had molested his children.
Second, unlike Carver, the initial report here was not made by a child. In Carver, a drug case, the informants were an 8-year-old and a 10-year-old who had received their information from an even younger child. Carver, 51 Wn. App. at 349. Here, the informant was the adult mother of D.H. Even in the case of a victim report, some indication of reliability is nevertheless required. State v. Chatmon, 9 Wn. App. 741, 748 n.4, 515 P.2d 530 (1973). The affidavit was amply supported here. The victim gave a highly detailed description of the alleged criminal conduct, which was corroborated by his mother's description of the child's own language and sexualized behavior with his sibling. When the informant is an ordinary citizen whose identity is disclosed, the degree of detail in the report is an intrinsic indicator of reliability. State v. Northness, 20 Wn. App. 551, 557, 582 P.2d 546 (1978). Moreover, the police conducted an independent investigation, interviewing among others the victim's mother and his 11-year-old sister, who also reported inappropriate behavior by Mr. Amezcua. Such independent facts as could be corroborated were corroborated. An investigation of Mr. Amezcua turned up a history of suspected child molestation. The warrant affidavit was adequate.
Mr. Amezcua also contends the search of his home exceeded the scope of the warrant. It was `unnecessarily thorough,' his house was ransacked, and unrelated items were seized. The trial court agreed that some items seized exceeded the scope of the warrant and excluded those items from the evidence. Mr. Amezcua does not explain how the scope of the warrant was otherwise exceeded or how he was prejudiced by excluded evidence.
He also complains that the warrant was not shown to him as required by CrR 2.3(d). A violation of this rule does not require suppression of evidence, however, absent a showing of prejudice. State v. Aase, 121 Wn. App. 558, 565-66, 89 P.3d 721 (2004). Mr. Amezcua does not claim prejudice.
The court did not err in denying suppression of the physical evidence.
We review alleged instructional errors de novo in the context of the instructions as a whole. State v. Woods, 143 Wn.2d 561, 590, 23 P.3d 1046 (2001).
An impermissible comment on the evidence occurs if the jury can infer from the court's words or conduct that the judge has a personal belief regarding the merits of the case. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995); State v. Ciskie, 110 Wn.2d 263, 283, 751 P.2d 1165 (1...
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