State v. Evans, No. 33356-2-II (Wash. App. 8/1/2006)
| Decision Date | 01 August 2006 |
| Docket Number | No. 33356-2-II,33356-2-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. TREVOR W. EVANS, Appellant. |
Appeal from Superior Court of Cowlitz County. Docket No: 04-8-00439-2. Judgment or order under review. Date filed: 05/24/2005. Judge signing: Hon. James E Warme.
Counsel for Appellant(s), Lisa Elizabeth Tabbut, Attorney at Law, 1402 Broadway St, Longview, WA 98632-3714.
Counsel for Respondent(s), Amie L. Hunt, Hall of Justice, Cowlitz Prosecuting Attorneys Office, 312 SW 1st Ave, Kelso, WA 98626-1739.
Trevor W. Evans appeals the juvenile court adjudication finding him guilty of first degree child molestation, arguing (1) that the disposition order erroneously prohibited him from using or possessing ammunition and deadly weapons; (2) that the court's reliance on improper opinion testimony denied him his right to a fair trial; and (3) that the court abused its discretion in refusing to consider his request for a special sex offender disposition alternative (SSODA). We affirm the adjudication but remand for modification of the disposition.
The State charged Evans with one count of first degree child molestation occurring between April 2, 2004, and December 16, 2004. Because the State wanted to use hearsay statements made by B.S., the five-year-old victim, a Ryan hearing1 was held contemporaneously with the trial.
The State first called Marnie Slater, the mother of B.S. Slater and B.S.'s father, Sterling Smith, separated when B.S. was 18 months old, but their relationship was amicable and a parenting plan was in place. B.S.'s primary residence was with Slater, her three siblings, and Slater's boyfriend, Casey. B.S. and her twin brother Tucker stayed with Smith on Tuesdays and Wednesdays and every other weekend. Smith lived with his fianc`e, Tammy Owens, and her sons, Danny and Evans. Evans was 15 years old at the time of trial.
At times, B.S. would resist visiting her father. On December 16, 2004, when Slater was driving B.S. to Smith's house, B.S. became adamant that she did not want to visit her father. The more Slater tried to convince B.S. to go, the more upset B.S. became. Slater relented and drove B.S. home.
On the way home, B.S. could not stop crying and told her mother that she needed to talk. B.S. said that she was afraid of Evans because he took out his `pee-pee' and put it all over her and that it had been happening a long time. Report of Proceedings (RP) (03/25/05) at 25-26. After assuring B.S. that everything would be fine, Slater called Smith and told him what B.S. had said.
When they arrived home, B.S. wanted Slater to tell Casey, her boyfriend, what had happened. When Casey arrived home, Slater told him what B.S. had said in the car. When Slater asked B.S. where Evans had touched her, B.S. pointed to her vagina and buttocks. When Slater asked if Evans hurt her, B.S. said yes. B.S. said that the last touching occurred during the previous Tuesday visit when Smith and Owens left to pick up pizza. B.S. said that the touching happened while she was on the computer and also in Evans's bedroom. She said that Evans told her not to tell.
The next day, Smith asked B.S. to tell him what had happened at his house with Evans. B.S. repeated that Evans had touched her and pointed to her vagina and bottom when Smith asked where. She said that Danny and Tucker were in the living room watching television when it happened, and that Smith and Owens were not there. B.S. was unclear as to how many times the touching had occurred, but she remembered that it was the day she wore her tie-dye dress. Smith remembered that B.S. had worn this dress the prior Tuesday, when he and Owens picked up pizza from a nearby restaurant.
A few days later, when Slater and B.S. were shopping, B.S. stopped and said, `Mom, {Evans is} going to say that it's not true, but it is, I promise.' RP (03/25/05) at 33. A few days after that, B.S. came up to Slater in the bathroom and said, `Mom, I said that it happened one time, but it happened more than once.' RP (03/25/05) at 34. B.S. brought up the touching again when Slater told her they were going to the doctor. She said, `Mom, I told dad that my potty hurt when I was at your house, but it hurt when I was at his house, too.' RP (03/25/05) at 37.
The State then called B.S. She recited the alphabet, counted to 20, and knew various colors. She knew her age, her teacher's name, and that Santa brought her toys for Christmas. She also answered a series of truth/lie flash cards. In lieu of an oath, the judge asked B.S. whether she understood that he was the boss and that she would get into trouble if she lied in court. B.S. said that she understood and would tell the truth.
B.S. testified that Evans had touched her bottom with his hand. She said she saw Evans's pee spot in his bedroom and that when she and Evans were lying under the covers of his bed, he asked her to touch it. When she did, it was hard. She saw white stuff come out of Evans's pee spot and go onto the bed. She was able to say that Evans's penis was the same color as his skin, draw a picture of it, and correctly say where it was located on his body. She said that Evans told her not to tell anyone what had happened. She also said that Evans had touched her pee spot with his penis over her clothes. She said that some of this touching occurred on the day that Smith and Owens left the house to get pizza.
Smith testified that he left Evans in charge when he and Owens left for pizza but added that the four children were acting normally when they returned.
Deputy Pat Schallert testified that she spoke to B.S. about the incident, and also to Slater, Smith, and Evans. When the State asked her about B.S.'s behavior during the interview, Schallert responded that B.S. was very sincere and serious. She added that it did not appear that B.S. had been coached.
On cross examination, the defense questioned Schallert closely about her investigation and her failure to interview B.S.'s sister Danika, her mother's boyfriend Casey, and Evans's brother Danny: `{W}ouldn't you agree. . . that a fair, thorough, accurate investigation would have included talking to those three people?' RP (04/01/05) at 13. Schallert responded as follows:
At the time, I felt that {B.S.'s} disclosure was very sincere. The information she relayed was something that only someone who possibly had experienced that would have that information, being five years old.
RP (04/01/05) at 13. Defense counsel did not object to or pursue this response, but she did ask Schallert if it was her opinion that B.S. did not appear to be coached. Schallert acknowledged that this was opinion testimony that could be considered speculative.
After the State rested its case, the court made its decision regarding the Ryan hearing. The court ruled that B.S. was competent and that the statements made to her mother and father were admissible.
Evans then testified and denied touching B.S. inappropriately. He said that she would have been in his bedroom for 30 seconds, at most, with the door open.
Danny also testified. He remembered that once when Smith and Owens went to get pizza, B.S. and Evans were in the bedroom for 15 minutes with the door closed.
The court found Evans guilty as charged and explained its decision as follows:
Having considered all of the testimony in this case, these are the things that are the most compelling to me: When {B.S.} made the revelation, or the accusation, she was under no influence, any external influence, to do so. She was highly emotional, spontaneous, fairly consistent. Fairly consistent. It was not completely consistent.
. . .
The I think the things that are the most compelling to me are the that are that {B.S.} has some information that five-year olds shouldn't have. She's aware that penises have erections. The fact that she might know what a penis looks like is not necessarily—at all mean that she knows what an erect penis looks like, or that an erect penis is hard as opposed {to} soft. That seminal fluid is clear or white to clear, rather than the color of urine. Those are fairly compelling.
The Defendant's testimony is that it did not happen and could not have happened. I don't find that the testimony that it could have not happened absolutely compelling, it could happen. The question is: Am I convinced beyond a reasonable doubt that it did happen? It's easier to say that it didn't, but I'm convinced that it did. I'm satisfied beyond a reasonable doubt that it happened. There was some sexual contact. I can't think of any reason why {B.S.} would not be honest about that, and she's fairly consistent that it happened.
The parties then discussed the matter of sentencing. The State recommended a SSODA evaluation but added that it was not necessarily recommending a SSODA and did not usually do so where the case went to trial. Defense counsel wondered whether there was any point to an evaluation because Evans denied the charge and would be appealing. The court ordered a SSODA evaluation.
When the parties returned for sentencing, probation officer Robert Wagner informed the court that the results of Evans's two polygraphs were inconclusive. During the polygraphs, Evans did not admit to the offense. Wagner had asked Dr. John Ingram, who was going to perform the psychological portion of the evaluation, to determine whether he could proceed. Dr. Ingram told Wagner that the evaluation would be futile because without Evans's history and admission to the offense, he could not be amenable to treatment. Wagner recommended that the court impose a guideline sentence.
Defense counsel was very concerned with the court sending Evans to the juvenile institution and reiterated that Evans would appeal the finding of guilt. She stated that Evans hoped to start SSODA, be cooperative, and do what he needed to do to stay out of the juvenile institution...
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