State v. Hoefler

• Decision Date: 23 July 2015
• Docket Number: No. 31719-6-III,31719-6-III
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. TERRY MICHAEL HOEFLER, Appellant.

STATE OF WASHINGTON, Respondent, v. TERRY MICHAEL HOEFLER, Appellant.

No. 31719-6-III

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE

July 23, 2015

UNPUBLISHED OPINION

LAWRENCE-BERREY, J. — Terry Michael Hoefler appeals his conviction for attempted rape of a child in the first degree, contending (1)the State failed to present sufficient evidence to support his conviction, (2)the trial court erroneously admitted lay opinion testimony that was not based on personal knowledge in violation of ER 602, (3)the prosecutor engaged in misconduct during closing argument by referencing facts not in evidence and appealing to the passions and prejudice of the jury, and (4) defense counsel provided ineffective assistance of counsel by failing to object to the prosecutor's closing argument.Mr. Hoefler has also filed a statement of additional grounds for review in which he asserts (1) insufficient evidence supports the conviction, (2)the trial court erred in admitting certain photographic evidence, and (3) juror misconduct.We disagreewith his contentions and affirm.

FACTS

During the early morning of July 22, 2012, Terry Hoefler, Tahti Dilkey, and Kable Gunter were driving to Mesa, Washington.The truck they were in began to smoke, so they stopped to look for oil.Mr. Hoefler and Mr. Gunter left to see if they could find oil at a nearby business, while Ms. Dilkey remained in the car.

Mr. Hoefler knocked on the door of a house adjacent to the business.The door opened as he knocked, and he went inside.As he walked through the house, he saw items he could sell and started gathering them.He went into a bedroom and saw three children sleeping in a bed.He carried 11-year-old L.S. from the bed and placed her on a couch in the living room.He then placed a plastic bag in her mouth and removed her shorts.L.S. removed the bag from her mouth and started to yell.Mr. Hoefler fled.

L.S.'s aunt, Vieny Sanchez, awakened to the sound of multiple children screaming.Her boyfriend, Raphael Esparza, opened the door to their bedroom.L.S. came running to the room wearing only her underwear and t-shirt, telling Ms. Sanchez a man was in the house.L.S. appeared scared and kept saying someone was in the house and had tried to touch her.L.S. said that the man had told her to be quiet, he was just going see something, and it was not going to hurt.It took Ms. Sanchez and Mr. Esparza between 5and 10 minutes to confirm the man had left the house and to call the police.

When Mr. Hoefler returned to the truck, he looked upset and told Ms. Dilkey that "a little girl . . . 'woke up'" and that "'the police were on their way.'"Report of Proceedings (RP)at 104.According to Ms. Dilkey, Mr. Hoefler moved the truck and started wiping down the interior to remove his fingerprints.Mr. Hoefler then fled.

Sheriff's Deputy George Rapp received a telephone call about 2:19 a.m. and proceeded toward the location.Approximately 4.7 miles away from the victim's house, Deputy Rapp observed a man on foot matching the description of the suspect.The man appeared to have been running.Deputy Rapp stopped the person at 2:27 a.m. and identified him as Mr. Gunter.

At most, 10 minutes had passed between L.S.'s screams and her aunt calling police, and another 8 minutes had passed between her 2:19 a.m. call and Deputy Rapp's 2:27 a.m. stopping of Mr. Gunter.The fact that Mr. Gunter was on foot and 4.7 miles away from the victim's house made it unlikely or impossible that he was the same intruder at the victim's house 18 minutes earlier.

Several hours later, police found Mr. Hoefler.He had been hiding in a canal and was wearing women's clothing and L.S.'s skirt.Officer Gordon Thomasson arrested Mr. Hoefler and took him to the Sanchez house for a showup.L.S. did not recognize Mr.Hoefler, but she did notice that he was wearing her skirt.Following the showup, Officer Thomasson directed Mr. Hoefler out of the patrol car.Based on the small tight skirt Mr. Hoefler was wearing, a bulge under the skirt, and the manner in which he moved, Officer Thomasson believed Mr. Hoefler had an erection.

The State charged Mr. Hoefler with residential burglary and attempted rape of a child in the first degree.As to the attempted rape charge, the information provided that Mr. Hoefler "with intent to commit the crime of Rape of a Child in the First Degree, committed an act, to wit: pushed L.S. (D.O.B.: 03/20/2001) down on a co[u]ch and pulled down her underwear, which was a substantial step toward that crime."Clerk's Papers(CP)at 128-29.

On the first day of trial, Mr. Hoefler entered a guilty plea to the residential burglary charge.Defense counsel explained to the court, "My client's never from the inception of this case said that he wasn't guilty of residential burglary.It's the sex charge that he's contested all along."RPat 11.

At trial, L.S.'s aunt, Ms. Sanchez, described the living arrangements in her home.She identified her housemates as including her two young boys, F.S. (age 7) and I.S. (age 5); her boyfriend, Mr. Esparza; and her sister.In addition she testified that L.S., her 11-year-old niece, had lived with the family for several years.She testified about beingawakened by her niece's and her children's screams, fearing that the intruder was still in the house, searching for the intruder, and then calling the police.

Ms. Sanchez testified that a few hours after calling the police, and while driving to a nearby business to warn employees about a possible fugitive in the area, she saw Mr. Hoefler hiding in a canal.She armed herself with a stick and called 911 to report him.As Mr. Hoefler exited the canal, Ms. Sanchez noticed that he was wearing one of her sister's tops and one of L.S.'s skirts.

Detective Jacinto "Jason" Nunez testified that he spoke with Mr. Hoefler after his arrest at about 5:15 a.m.He observed that Mr. Hoefler was wearing a skirt and was covered in dirt.Initially, Mr. Hoefler did not want to talk to the detective.However, as the detective drove Mr. Hoefler to the showup, Mr. Hoefler volunteered that no one else was involved in the burglary and that he did not want anyone else to get in trouble.During the showup, neither L.S. nor F.S. was able to identify Mr. Hoefler as the perpetrator.

Detective Nunez testified that after the showup, Mr. Hoefler requested an interview.The detective advised Mr. Hoefler of his Miranda¹ rights.Mr. Hoefler told the detective that his pickup truck ran out of oil while driving with Ms. Dilkey and Mr.Gunter.He told the detective that he walked across the street to a business to look for oil.Next to the business, Mr. Hoefler saw the Sanchez residence with several cars parked around it.Mr. Hoefler thought he might find oil there.According to Mr. Hoefler, as he knocked on the door of the residence, the door opened, and he entered the residence with the intent to take things he could sell.The detective testified:

[Mr. Hoefler] said he entered a room.That he turned the light on, and it surprised him that there was three kids in a bed, and . . . initially he said the girl woke up because he turned the light on.Then he said that he was in a—somewhere else when the girl woke up and that the little girl approached him and that he was telling her to go away.Go back to sleep.And that she kept coming at him.

So, then he told her to go to the couch and to be quiet, and he said the little girl kept wanting to come toward him, and then she became hysterical and . . . started to scream.

RPat 153.

Mr. Hoefler denied touching L.S.When the detective asked him why L.S. screamed, Mr. Hoefler attributed it to a communication problem.He said he ordered L.S. to sit on the couch, but L.S. kept coming toward him.Mr. Hoefler also told the detective that Mr. Gunter and Ms. Dilkey stayed at the pickup and did not enter the house with him.According to Detective Nunez, Mr. Hoefler denied trying to rape L.S. but stated, "'If I had wanted to have I could have done it.'"RPat 155.

L.S. testified that she was sleeping in her cousins' room when "the guy grabbed[her]" and carried her to the couch in the living room.RPat 381, 383-84.She stated that, at first, she thought Mr. Esparza had picked her up and moved her to the couch, but she realized it was not Mr. Esparza when she heard the intruder's voice.According to L.S., the male stood in front of her, put a bag in her mouth, and removed her shorts.L.S. removed the bag from her mouth, yelled, and ran to her aunt's bedroom door.L.S. was able to identify the attacker as a white male, but it was dark and she did not get a good look at his face.L.S. was not able to identify Mr. Hoefler at the showup.During cross-examination, L.S. recalled previously identifying Mr. Gunter from a showup as the person who entered the house.

Seven-year-old F.S. testified that L.S.'s screams woke him up and that he saw the "back of [the intruder's] head."RPat 404.He described the person as bald with tattoos on his arm.F.S. saw the intruder run out of the house, and he started to scream.At a showup, F.S. identified Mr. Gunter as the intruder.During cross-examination, defense counsel showed F.S. a photograph of Mr. Gunter.F.S. identified Mr. Gunter as the man who had entered the house based on his baldness and tattoos.He did not identify Mr. Hoefler as the intruder when shown a photograph of Mr. Hoefler.

During trial, defense counsel objected to Officer Thomasson testifying that Mr. Hoefler had an erection after the showup, arguing that the opinion was "pure conjecture."RPat 270.The prosecuting attorney argued that the opinion was admissible as a lay opinion because "the way an erection looks is within the common knowledge of any man and woman."RPat 273.The court agreed, finding, "This is similar to giving an opinion regarding speed, but it requires foundation testimony that the person has sufficient experience to be able to judge the speed of the vehicle, and if we have similar...