State v. Barela
| Decision Date | 25 October 2016 |
| Docket Number | 32968-2-III |
| Parties | STATE OF WASHINGTON, Respondent, v. ERNEST GLASGOW BARELA, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Ernest Barela appeals his convictions for two counts of second degree incest, one count of first degree child molestation and two counts of second degree child molestation. He argues the trial court erred in denying his postjudgment motion for a new trial. He also asserts three other bases of error, and argues cumulative error requires reversal. In affirming, we conclude the trial court did not err in denying a new trial and we reject Mr. Barela's other claims of error.
When E.B. was six or seven years old, her father, Mr. Barela, went into her bedroom and sat on her bed. He removed his shorts placed E.B. on his lap, and hugged her. For the next several years, Mr. Barela often touched E.B. inappropriately and in a sexual manner. E.B. estimated the number of these inappropriate touchings was in the high hundreds. E.B. was unable to say whether actual penetration ever occurred. The last inappropriate touching occurred on April 9, 2012, when E.B. was 12 years old. That morning, Mr. Barela came into E.B.'s bedroom, undressed her, and put his penis between her thighs. After laying on top of E.B. for a few minutes Mr. Barela pulled up his pants and left.
On April 11, 2012, E.B. was participating in youth group at a church in Yakima. After the church service had ended, E.B approached one of the youth leaders, Sydney Mutch, and asked to speak to her in private. The two went into a side room, and E.B. told Ms. Mutch that her dad had been molesting her. Ms. Mutch went and got the pastor's wife, Miel Lindseth. Ms. Lindseth, Ms. Mutch, and E.B. then met in a side room and E.B. shared the information again. Ms. Mutch then went and got E.B.'s mother, Michelle Barela. E.B. and Mrs. Barela went into the side room, and E.B. told Mrs. Barela what had happened to her. After talking at the church, Mrs. Barela and E.B. drove home.
The next night, Mrs. Barela confronted Mr. Barela about E.B.'s allegations. Mrs. Barela told Mr. Barela about what E.B. had disclosed and Mr. Barela said, "I've been inappropriate with her." Report of Proceedings (RP) at 493. Mrs. Barela said, "How could you, " and Mr. Barela then said, "There was no sex." RP at 494.
The next morning, Mrs. Barela took E.B. to the Yakima Police Department, where Detective Chad Janis from the special assault unit interviewed her.
The State charged Mr. Barela with first degree rape of a child, second degree rape of a child, first degree child molestation, two counts of second degree child molestation, two counts of first degree incest, and second degree incest.
Mr. Barela moved in limine to exclude testimony from Detective Janis regarding delayed reporting in child sex victims. The trial court ruled that it was appropriate for the State to present some testimony regarding delayed reporting.
Mr. Barela also moved to limit discussions during jury selection relating to delayed reporting. Mr. Barela asked the trial court to limit these types of questions to those necessary to uncover potential bias, and to exclude a "wholesale brainstorming session on that." RP at 49. The trial court reasoned it was appropriate for the State to be able to identify potential jurors who might or might not be receptive to the idea of delayed reporting. The trial court somewhat equivocally ruled, "I'm going to allow it, but I'm not, you know." RPat53.
The State moved in limine to allow testimony from Ms. Mutch regarding E.B.'s disclosure under the "hue and cry" doctrine. Clerk's Papers (CP) at 26-28; RP at 77. The trial court granted the State's motion over Mr. Barela's objection.
During jury selection, the State asked the jury pool the following question:
What if that child, say, delayed in the time when some of the things happened to her and the time when the case got investigated? Would you hold that delay of disclosing of telling against her?
RP at 245. One juror responded that he or she would not, because "You hear about it all the time . .. between the churches and daycares and stuff where stuff comes up years later." RP at 245. Other jurors hypothesized about the possible reasons why a sexually abused child might delay reporting.
During the second round of voir dire, the State began questioning venire juror X. Venire Juror X Mated he had previously been employed as a counselor at a long-term treatment facility for severely emotionally disturbed children and teens who had been physically and sexually abused. He stated he had worked there for nine years. The following exchange then occurred:
Trial commenced, and the State called Ms. Mutch. Ms. Mutch testified that after youth group E.B. had asked to talk to her, and the two went into a storage room to talk. Ms. Mutch then testified E.B. "told me that her dad had been molesting her." RP at 364.
The State also called Mrs. Barela. Mrs. Barela testified about Mr. Barela's admission that he had been inappropriate with E.B. She also testified that her relationship with Mr. Barela had been rocky for a while. On cross-examination, Mrs. Barela agreed that she was not happy well before her children were born. Defense counsel then asked, "Because you had an affair within the first couple of years of your marriage, correct?" RP at 512. The State objected and the court sustained the objection. Defense counsel did not contest the court's ruling and moved on with another question.
The State also called E.B. E.B. testified that she told Ms. Mutch that her father had been sexually abusing her. She also testified that several weeks before disclosing the abuse to Ms. Mutch, she had told a friend at school. She testified that she had thought about telling someone for a while but had a lot of internal conflict, and did not know what would happen or what people would think.
The State called Detective Janis. Detective Janis testified that he had specialized training in child abuse cases, specifically in interviewing child sex abuse victims. He testified he had conducted hundreds of these interviews. After Detective Janis testified about his interview with E.B., the State began questioning him on delayed disclosures. Detective Janis testified that a delayed disclosure is when a person delays reporting abuse, that a person can delay reporting anywhere from several days to years, and that a child might delay disclosing in an intrafamilial abuse case. Mr. Barela objected, arguing that E.B. testified regarding why she delayed reporting and Detective Janis's testimony was therefore unnecessary. The trial court overruled Mr. Barela's objection, stating that it would allow Detective Janis a limited amount of leeway in that regard.
Detective Janis continued testifying that children delay reporting for a variety of reasons-fear, dependence, loyalty, love, fear of not being believed, or because they understand the negative consequences of reporting-and the reasons are unique to each child. He testified a "triggering event" typically causes a child to disclose, which is usually "a receptive person to listen in their life, and that could be a family member or church member or school member, a friend." RP at 542. Detective Janis then testified that he interviewed E.B., and that E.B. disclosed the abuse to church members and ultimately her mother.
RP at 692. Dr. Johnson also testified that children delay disclosing because they are afraid of not being believed, concerned of harm to the parent, concerned the family will lose resources, or the child believing that it is his or her fault.
After both parties rested, the trial court dismissed the first degree rape of a child charge and submitted one of the counts of first degree incest to the jury as second degree incest. The jury convicted Mr. Barela of first degree child molestation, second degree child molestation, and second degree incest. The jury acquitted him of second degree rape and first degree incest. After the trial, Mr. Barela moved the trial court to arrest judgment and moved for a new trial based on many of the same arguments he now raises on appeal.
The trial court denied Mr. Barela's motion. With regard to the alleged tainting of the jury pool, the trial court referenced Dr. Johnson's testimony that delayed disclosure "is the norm and not the exception." RP at 926. The trial court reasoned that RP at 926. Thus, the court...
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