State v. Hesselgrave

• Decision Date: 21 January 2015
• Docket Number: No. 44177-2-II,44177-2-II
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. STEVEN L. HESSELGRAVE, Appellant.

STATE OF WASHINGTON, Respondent, v. STEVEN L. HESSELGRAVE, Appellant.

No. 44177-2-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

January 21, 2015

ORDER AMENDING OPINION AND DENYING MOTION TO RECONSIDER

Appellants have filed a motion asking the court to reconsider its unpublished opinion filed on October 29, 2014. Having considered the motion and supporting materials, the court now orders as follows:

(1) The first sentence on page 9 is amended to read as follows:

But error is harmless "'if we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result without the error.'" Jones, 168 Wn.2d at 724 (quoting Smith, 148 Wn.2d at 139).

(2) The first paragraph on page 10 is amended to read as follows:

Accordingly, the trial court's ruling limiting Hesselgrave's ability to impeach S.L. was harmless. Hesselgrave was able to attack S.L.'s credibility by showing the jury, through defense witnesses, that S.L.'s recollection of the events was at times contradictory, if not completely inaccurate. The jury was free to decide that, such inconsistencies rendered S.L.'s testimony unreliable and her credibility suspect. Consequently, we are convinced beyond a reasonable doubt that any reasonable jury would have reached the same result had Hesselgrave been able to continue questioning S.L. without constraint. Thus, although the trial court arguably limited Hesselgrave's ability to conduct cross-examination, we hold that any error was harmless. This error did not prevent Hesselgrave from presenting his defense.⁹(3) In all other respects the motion for reconsideration is denied.

IT IS SO ORDERED.

DATED this 21^ST day of JANUARY, 2015.

/s/_________

JOHANSON, C.J.

We concur:

/s/_________

MELNICK, J.

/s/_________

HUNT, J.P.T.

UNPUBLISHED OPINION

JOHANSON, C.J. — Steven Hesselgrave appeals his conviction and sentence for first degree rape of a child. He argues that (1) his Sixth Amendment right to present a defense was violated by trial court rulings that improperly limited his right to cross-examine witnesses and improperly excluded evidence, (2) he received ineffective assistance of counsel, (3) the trial court abused its discretion in finding the victim competent to testify and in admitting child hearsay statements, (4) the prosecutor committed misconduct by using a "false choice" argument, and (5) the trial court abused its discretion by imposing certain community custody conditions. We hold that (1) any error associated with the trial court's limitation of Hesselgrave's right to cross-examine witnesses was harmless and the trial court did not violate Hesselgrave's right to present a defense by improperly excluding evidence, (2) counsel was not deficient in his representation, (3) the trial court did not err in finding the victim competent to testify, and (4) the State did not argue a "false choice" to the jury. Finally, we accept the State's concession regarding community custodycondition number 13, remand to clarify condition 16, and remand to strike condition number 25. We affirm the conviction and remand to correct the community custody conditions.

FACTS

I. BACKGROUND

In 2011, S.L. was an eight-year-old female student attending elementary school. Hesselgrave is S.L.'s former step-father. One May afternoon, S.L. disclosed sexual abuse by her step-father. Laurel Powell, the school counselor, reported the matter to Child Protective Services (CPS). CPS social worker Christine Murillo conducted a "safety interview" with S.L. on May 17, during which S.L. disclosed sexual abuse by her stepfather. On May 25, Cornelia Thomas, an employee of the Child Advocacy Center in Pierce County, conducted a forensic interview with S.L. S.L. made several detailed disclosures to Thomas that involved allegations of. oral, vaginal, and anal intercourse. S.L. testified consistently with these disclosures at trial. According to Thomas, S.L. maintained sufficient memory to have an independent recollection of the occurrence, S.L.'s statements describing the incident appeared, to be based on her perception, S.L. communicated "quite well," and S.L. was able to distinguish truth from lies. 6 Report of Proceedings (RP) at 677.

On the night of the incident, Hesselgrave also showed S.L. magazines depicting naked women, in addition to a video on his computer which featured an elephant touching a woman'svagina. S.L. declared that on the same night, Hesselgrave woke up her brother, J.H.,¹ told him to take off his clothes, and instructed S.L. to bite J.H's penis, a request with which S.L. complied.²

On June 2, Detectives Jennifer Quilio and Brad Graham interviewed Hesselgrave at police headquarters. When asked if there was any reason that S.L. may have seen his penis, Hesselgrave responded that it was possible because he watched pornography at night in the living area of his apartment when he thought the children were sleeping. Hesselgrave surmised that S.L. could have woken up and inadvertently seen him masturbating. Aware of S.L.'s allegations, Detective Quilio asked Hesselgrave whether he viewed pornography that contained images of animals and women engaging in sexual acts. Hesselgrave admitted that he did, but claimed that he had never seen a video involving an elephant. Hesselgrave denied any sexual contact with S.L.

The day after his police interview, Hesselgrave told Leona Ling,³ S.L.'s mother, that she would never see him again and that he was leaving with their sons. Ling then called 911 to report what she believed to be an imminent kidnapping. Patrol officers arrested Hesselgrave. The State charged Hesselgrave with first degree rape of a child contrary to RCW 9A.44.073.⁴

II. PROCEDURE

A. PRETRIAL MOTIONS

Before trial, the court held a hearing to address Hesselgrave's challenge regarding S.L's competence to testify. The State called numerous witnesses including Murillo, Thomas, S.L, and others. The trial court also admitted and published the digital video disc recording of S.L's interview with Thomas.

At the hearing, Hesselgrave argued that S.L. failed to show that she had an independent memory of the incident and that she had difficulty distinguishing truth from lie because she did not understand the concept of a mistake. The trial court considered the timing of the incident in addition to the Allen⁵ factors and found that Hesselgrave had failed to overcome the presumption that S.L. was competent to testify.

Also before trial, the State moved to admit S.L.'s statements to Thomas, Murillo, and the classmates to whom she made the initial disclosures under RCW 9A.44.120, the child hearsay statute. The court considered the Ryan⁶ factors and determined that S.L.'s statements were admissible provided that S.L. also testified.

B. TRIAL

At trial, during cross-examination of S.L., Hesselgrave asked S.L. about a pretrial defense interview of S.L. conducted by defense counsel and investigator Julie Armijo, but S.L. testified that she had no recollection of such an interview. Hesselgrave then asked a series of additionalquestions attempting to highlight S.L.'s inconsistent recitations of the incident. S.L. denied having made such inconsistent statements. Hesselgrave continued with this line of questioning, but the State began to object, arguing that the questions were cumulative, asked and answered, and "[ER] 613." 3 RP at 349. Hesselgrave argued that he was attempting to impeach S.L., but the court sustained the objections. Hesselgrave finished cross-examination, but reserved the right to recall S.L.

Later, during direct examination of Armijo, Hesselgrave asked a series of similar questions, again attempting to demonstrate that S.L.'s responses during the defense interview were frequently inconsistent with S.L.'s trial testimony. After several of these questions were answered, the State again objected, citing improper impeachment and improper questioning.

Outside the jury's presence, the parties argued as to whether S.L.'s interview responses were inconsistent with her trial testimony. The court agreed that the interview transcript contained inconsistencies, but nevertheless sustained the State's objection, noting that under ER 613(b), extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon. The court found that requirement unmet and ruled that Hesselgrave was not allowed to ask additional questions of Armijo from S.L.'s interview transcript.

Hesselgrave argued that the opportunity to explain did not have to occur prior to the introduction of the extrinsic evidence. Defense counsel then sought to recall S.L. The trial court said it would allow a few questions, but it placed limitations on the subject matter of the questions Hesselgrave could ask. Hesselgrave objected to this limitation on his right to cross-examination"of the only witness in this case." 7 RP at 782. Hesselgrave later recalled both S.L. and Armijo, but asked few questions of either witness, citing constraint by the court's earlier ruling.

Again, outside the jury's presence, Hesselgrave sought to admit documents related to divorce proceedings between himself and Ling, which he argued supported Hesselgrave's theory that Ling prompted S.L. to make false accusations because Ling was unhappy with the terms of the divorce. The trial court allowed some limited questioning of Ling on this topic, but it refused to admit the documents because they contained .prejudicial, irrelevant information about Ling's history of substance abuse.

In closing argument, the State contended that, in its view, there were only three possibilities in the case. The prosecutor said,

So here's what it really comes down to in this case. There's three possibilities for what happened: Someone coached [S.L.]; [S.L.] made it up on her own, or she is telling the truth. That's it.

7 RP at 938. The State also utilized...