State v. Ferguson

• Decision Date: 28 July 1983
• Docket Number: No. 48685-9,48685-9
• Parties: The STATE of Washington, Respondent, v. Frank R. FERGUSON, Petitioner.
• Court: Washington Supreme Court

Page 131

100 Wn.2d 131

667 P.2d 68

The STATE of Washington, Respondent, v. Frank R. FERGUSON, Petitioner.

No. 48685-9.

Supreme Court of Washington,

En Banc.

July 28, 1983.

Taggart & Phillips, Inc., P.S., Charles B. Phillips, Walla Walla, for petitioner.

Arthur Eggers, Walla Walla County Prosecutor, Michael S. Mitchell, Deputy Pros. Atty., Walla Walla, for respondent.

DIMMICK, Justice.

Petitioner Frank Ferguson was convicted of indecent liberties. In this appeal he challenges several evidentiary rulings made by the trial court. The Court of Appeals upheld the conviction. We affirm.

Ferguson was convicted by a jury of knowingly causing his 10-year-old stepdaughter to have sexual contact with him. RCW 9A.44.100(1). The principal witness at trial was petitioner's stepdaughter. She testified that her stepfather forced her to have sexual contact with him on many occasions. Her testimony was very detailed as to the nature and extent of the contact. She even testified as to her attempts to stop the ongoing activity, i.e., hiding a jar of Vaseline when petitioner asked for it. Petitioner attempted to attack the victim's credibility by asserting she was a liar and a thief. He also attempted to prove that his stepdaughter learned the things she testified to by reading magazines and observing her parents engage in sexual intercourse. Petitioner, however, did not attempt to prove that the particular type of conduct the victim described was learned in this fashion.

Various aspects of the victim's testimony were corroborated and verified by her mother, a schoolteacher, a caseworker and a psychologist.

Petitioner raises the following issues:

I

Photographs and wife's testimony regarding acts occurring at

the time the photographs were taken.

Petitioner challenges Mrs. Ferguson's testimony that she witnessed sexual contact between petitioner and the victim. She testified that one such incident occurred when the victim was 3 years old and the whole family was posing nude for photographs. At that time petitioner told his stepdaughter to put her mouth on his penis. The 7-year-old photographs were introduced over petitioner's objection during Mrs. Ferguson's testimony.

Admissibility of evidence requires, first, an analysis of the relevancy of the evidence and, second, a balancing of the prejudicial effect and probative value of that evidence. State v. Saltarelli, 98 Wash.2d 358, 655 P.2d 697 (1982). The challenged testimony and photographs are relevant and thus satisfy the first part of this test.

This court has often invoked an exception in similar cases to permit evidence of collateral sexual misconduct when it shows a lustful disposition directed toward the offended female. State v. Golladay, 78 Wash.2d 121, 470 P.2d 191 (1970), overruled on other grounds by State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976); State v. Leohner, 69 Wash.2d 131, 417 P.2d 368 (1966); State v. Fischer, 57 Wash.2d 262, 356 P.2d 983 (1960); State v. Thorne, 43 Wash.2d 47, 260 P.2d 331 (1953).

Such evidence is admitted for the purpose of showing the lustful inclination of the defendant toward the offended female, which in turn makes it more probable that the defendant committed the offense charged.

... The important thing is whether it can be said that it evidences a sexual desire for the particular female. 2 Wigmore on Evidence (3d ed.) 367, § 399, says:

"The kind of conduct receivable to prove this desire at such prior or subsequent time is whatever would naturally be interpretable as the expression of sexual desire.

"Sexual intercourse is the typical sort of such conduct, but indecent or otherwise improper familiarities are equally significant."

Thorne, at 60-61, 260 P.2d 331. Mrs. Ferguson's testimony regarding the sexual contact between the petitioner and victim is clearly relevant pursuant to this rule.

The photographs were admitted during Mrs. Ferguson's testimony and were only referred to in relation to that one particular incident of sexual contact. The photographs thus corroborated Mrs. Ferguson's testimony and were relevant. In fact, the petitioner concedes such possible corroborative effect in his brief.

The petitioner argues, however, that the photographs and the incident itself were too remote in time and thus prejudicial. He asserts that such prejudicial effect outweighs any probative value making the evidence inadmissible. We rejected a similar argument in State v. Thorne, supra, wherein the trial court admitted evidence of the defendant's prior sexual misconduct with his daughter to show his lustful disposition towards her. We held, at page 61, 260 P.2d 331:

"The limits of time over which the evidence may range must depend largely on the circumstances of each case and should be left to the discretion of the trial Court." 2 Wigmore on Evidence (3d ed.) 367, § 399.

Further, the balancing of the relevancy and desirability of evidence against its harmful effect is a matter peculiarly within the trial court's discretion. State v. King, 71 Wash.2d 573, 576, 429 P.2d 914 (1967). In light of the entire record, we conclude that the trial court did not abuse its discretion in admitting the photographs and the wife's testimony.

Petitioner also contends the photographs were prejudicial because some jurors may find offensive the fact that petitioner was a nudist. In testimony unrelated to the photographs, however, petitioner testified that he often lounged around the home in the nude, and personally thought there was nothing wrong with doing so. Accordingly, the photographs would not seem to have any additional effect on the jury and again in light of the entire record the trial court did not abuse its discretion in admitting the evidence.

II

Teacher's statement identifying petitioner as offender.

At trial the victim's teacher testified as follows:

Q. On February 8th, did you have occasion to have a discussion with [the victim]?

A. Yes.

Q. Where did that discussion take place?

A. Outside my classroom in the hallway.

Q. Very generally, what was the gist of that discussion?

A. It concerned her father.

Defense counsel objected to the reference made to petitioner and the trial judge overruled the objection. The prosecutor repeated the question and then the teacher testified that the conversation she had with the victim concerned "some sexual advances".

The general rule in this state is that in criminal trials for sex offenses the prosecution may present evidence that the victim complained to someone after the assault. State v. Goebel, 40 Wash.2d 18, 25, 240 P.2d 251 (1952). The rule admits only such evidence as will establish that the complaint was timely made. Excluded is evidence of the details of the complaint, including the identity of the offender and the nature of the act. State v. Murley, 35 Wash.2d 233, 237, 212 P.2d 801 (1949) and cases cited therein. Accordingly, the statement identifying the offender as the victim's "father" should not have been admitted.

A counterpart to this rule is that the weight of the harm claimed to have been caused by reference to the alleged offender's identity may be too slight to constitute reversible error. State v. Conklin, 37 Wash.2d 389, 223 P.2d 1065 (1950). The court in Conklin held that a witness' testimony which referred to the offender's identity was not reversible error because "[t]here is no risk here, then, of bolstering a disputed identification in admitting the evidence in question. There was never any dispute over the offender's identity. The issue was over what the appellant did or did not do." Conklin, at 391, 223 P.2d 1065.

The rationale of Conklin applies in this case. Identity of the offender was never at issue. It was never contended that someone other than petitioner engaged in the acts complained of. There was no risk that the teacher's testimony would bolster a disputed identification. The issue in this case was what petitioner did or did not do. The teacher's inadvertent reference to petitioner does not constitute reversible error.

III

Teacher's testimony regarding specific instances of conduct

relating to victim's credibility.

Petitioner's next claimed error relates to testimony by the victim's teacher during the State's rebuttal. Petitioner and other witnesses testified that the victim habitually lied and stole, did not comprehend what was going on, was emotionally disturbed and that her mental age was approximately 2 years behind her chronological age. During rebuttal the teacher testified on direct examination to the effect that the victim stopped stealing things when the teacher made an agreement with her and that the victim's lying at school related to her stealing or her merely agreeing with the other children's wild stories. Petitioner argues that credibility of a witness may be supported only by evidence of reputation of truthfulness, ER 608(a), and this testimony was not reputation testimony. He further argues that the testimony is not admissible under ER 608(b) which allows evidence of specific instances of conduct to support a witness' credibility. ER 608(b)(2) allows testimony relating to the truthfulness of another witness to be elicited on cross examination only. The testimony at issue here was during direct examination.

The testimony was not admissible pursuant to ER 608. ¹ We now consider whether that evidentiary ruling constitutes reversible error. The error is not of constitutional magnitude and thus we do not apply the "harmless beyond a reasonable doubt" test. Rather, we apply the rule that the error is not prejudicial unless, within reasonable probabilities, had the error not occurred, the outcome of the trial would have been materially affected. State v. Tharp, 96 Wash.2d 591, 637 P.2d 961 (1981); State v. Cunningham, 93 Wash.2d 823, 613 P.2d 1139 (1980).

After a review of the entire record, we are convinced the outcome of the trial would not have been affected had the challenged testimony been excluded. Other...