State v. Gaspar

Decision Date04 August 2020
Docket NumberNo. 53343-0-II,53343-0-II
CourtWashington Court of Appeals
PartiesSTATE OF WASHINGTON, Respondent, v. TOMÁS MANUEL GASPAR, Appellant.
UNPUBLISHED OPINION

GLASGOW, J.Tomás Manuel Gaspar was convicted of three counts of fist degree incest, two counts of second degree child rape, and one count of first degree child rape based on sexual abuse of one of his daughters and two of his granddaughters. Each victim testified that he raped her, and the sexual assault nurse who examined them testified regarding their disclosures to her. There was no physical evidence of abuse.

Gaspar appeals, arguing that the nurse improperly testified as to her opinion of Gaspar's guilt, that the prosecutor's statements during closing argument referencing the rules of evidence amounted to misconduct, that he received ineffective assistance of counsel based on his counsel's failure to object, and that cumulative error warrants reversal. He also challenges two conditions of community custody and the imposition of interest on legal financial obligations. The State concedes that the challenged conditions and interest provision were improper.

We affirm Gaspar's convictions. The challenged nurse's testimony was improper but its improper admission was harmless, and the prosecutor's statements were not improper. Gaspar's ineffective assistance of counsel claims also fail. Thus, there are not multiple errors that would require reversal under the cumulative error doctrine. We accept the State's concessions that the challenged community custody conditions and interest on legal financial obligations were improper, and we remand for correction of these errors.

FACTS

One of Gaspar's daughters, AB, and two of this granddaughters, RS and LS, accused him of sexual abuse. Each of the victims was between 11 and 13 years old when the alleged abuse took place, and they are all around the same age.

AB disclosed the abuse to her counselor after her mother noticed behavioral changes in her, including self-cutting. The abuse at issue took place on occasional weekend visits that AB had with Gaspar after AB's mother had separated from Gaspar. AB was about 12 years old at the time, although she said Gaspar started having sexual contact with her as early as when she was in first grade.

RS and LS disclosed their abuse at the same time to their mother when they were 11 and 13 years old, respectively. Their mother and AB's mother reported the allegations to the police. The State charged Gaspar with three counts of first degree incest, two counts of second degree child rape, and one count of first degree child rape.

At trial, AB testified that Gaspar had sex with her when she was in sixth grade. She said she did not tell her mother because she was scared of what would happen and Gaspar told her not to. He told her that if she told anyone he would go to jail. She testified that he had sex with her multiple times, sometimes in a chair in his room and sometimes in the attic. She testified that Gaspar watched pornographic videos with her and that she and LS had drawn pictures of people having sex with little girls. These pictures were admitted into evidence.

LS and RS both testified that Gaspar tried to put his penis in their vaginas and LS testified that it went partway in. LS testified that Gaspar also touched her vagina using his hands and mouth. LS said that Gaspar watched pornographic videos with her.

Lisa Wahl, a sexual assault nurse examiner, examined all three victims. Wahl was treated as an expert for the purposes of testifying, and Gaspar did not object to her qualifications. She did not act as a forensic interviewer, but rather met with each victim once to take their history, including sexual history, and perform a general physical exam. She then referred them to their regular healthcare providers and mental health counselors for ongoing treatment. Wahl did not serve as an ongoing treatment provider for any of the victims.

Wahl testified generally that delayed disclosure of sexual assault is common, particularly where the abuser is a family member. She then described her examination and interview of AB, during which AB described the abuse. Wahl testified that AB confirmed that her father had abused her, including instances of penile-vaginal penetration, since she was in first grade. Wahl testified that AB confirmed that there was penile-vaginal penetration, and also provided more details of the abuse than AB relayed in her own testimony.

Wahl then generally explained the phenomenon of grooming, where a perpetrator engages with a child over a period of time slowly "breaking down those rules and boundaries that usually exist between an adult and a child," and uses enticements or threats to prevent the child from disclosing. 1 Verbatim Report of Proceedings (VRP) (Mar. 21, 2019) at 201-02. She explained how that behavior manifested itself in this case:

For [AB], she was told that he'll go to jail. Now, why would that matter to [AB]? Well, he's her father and she loves him. And children love their parents, they're like right and left arms. You can't sever that relationship; they're the first people that a child knows and loves. And to then put that burden of her father will go tojail if she tells shifts the onus of responsibility onto the child's back and off of the perpetrator's back.
And so now we're talking about toxic stress, bearing that burden for six years until she disclosed.

Id. at 202-03. Wahl also explained that self-harm is a common coping mechanism of children who have been sexually abused, "[s]o she's going to self-harm is one classic example." Id. at 204. Wahl identified cutting as a typical response to molestation or child rape. The State later asked Wahl if she could think of any other reason AB would have cut herself besides the abuse by her father, and Wahl replied that she did not know of another reason. Gaspar did not object to these statements.

Wahl also testified that LS reported penile-anal penetration, as well as penile-vaginal penetration. RS reported penile-vaginal penetration.

One of the investigating detectives testified that he was aware that AB had also accused another relative of sexually abusing her, but the family informed him that the allegation had been resolved several years ago and they did not want him contacted. The detective did not follow up on this allegation. Wahl also testified that she was aware of AB's allegation against the other relative, although AB never told her when this alleged abuse occurred.

During closing argument, the prosecutor explained how AB, RS, and LS were all embarrassed about testifying and reluctant to share much detail about their experiences. He then contrasted their trial testimony with their disclosures to Wahl, explaining that it was easier for them to discuss the abuse alone with a medical professional. In doing so the prosecutor mentioned the hearsay exception for statements made for a medical diagnosis as a way of arguing that such statements can be particularly reliable. Gaspar did not object to these statements.

The prosecutor also referenced the rules of evidence elsewhere in his closing argument, explaining that the trial court sometimes excludes evidence, for example, because it is hearsay.The prosecutor did so in the context of explaining to the jury that it should focus on the evidence presented as it relates to the elements of the crimes charged. Gaspar did not object to these comments.

The jury found Gaspar guilty on all counts. The trial court sentenced Gaspar to 318 months to life in prison for first degree child rape, as well as community custody for the rest of his life, with his lesser sentences for all of the other counts to run concurrently. One condition of community custody was that Gaspar must undergo "periodic polygraph and/or plethysmograph testing to measure treatment progress and compliance at a frequency determined by [his] Sexual Offender Treatment Provider (SOTP), [community corrections officer], or [Department of Corrections] Policy." Clerk's Papers (CP) at 59. The trial court also ordered that Gaspar not be allowed to access the Internet without supervision and the prior approval of his community corrections officer. The trial court ordered Gaspar to pay only the crime victim assessment and DNA collection fee because he was indigent, but it included the boilerplate language imposing interest on these financial obligations.

Gaspar appeals.

ANALYSIS
I. WAHL'S TESTIMONY

Gaspar argues that his convictions for second degree rape of a child and incest that were based on his abuse of AB must be reversed because Wahl improperly testified as to her opinion of Gaspar's guilt. We hold the challenged testimony was improper and was a manifest error, but the error was harmless beyond a reasonable doubt.

A. RAP 2.5(a)(3)

Gaspar acknowledges that he did not properly object to Wahl's testimony at trial. To bring this claim for the first time on appeal, he must therefore show that allowing this testimony was a manifest error affecting a constitutional right. RAP 2.5(a)(3). "Application of RAP 2.5(a)(3) depends on the answers to two questions: '(1) Has the party claiming error shown the error is truly of a constitutional magnitude, and if so, (2) has the party demonstrated that the error is manifest?'" State v. Grott, 195 Wn.2d 256, 267, 458 P.3d 750 (2020) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253 (2015)).

The focus of the manifest error inquiry "must be on whether the error is so obvious on the record that the error warrants appellate review." State v. O'Hara, 167 Wn.2d 91, 99-100, 217 P.3d 756 (2009). The defendant must make a plausible showing that the asserted error had practical and identifiable consequences at trial. Grott, 195 Wn.2d at 269. To make this determination, "'the appellate court must place itself in the shoes of the trial court to ascertain whether, given what the trial court knew at that time, the court could have corrected the...

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