State v. Hutton
| Decision Date | 19 July 2011 |
| Docket Number | No. 39293-3-II,39293-3-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. THERESA ANN HUTTON, Appellant. |
Hunt, J. — Theresa Ann Hutton appeals her conviction for second degree criminal mistreatment of her daughter (KEH1) and her exceptional sentence based on the aggravating sentencing factor deliberate cruelty. She argues that (1) the State's plea bargain offer, contingent on Hutton's not interviewing KEH, violated her right to effective assistance of counsel and due process under the Sixth and Fourteenth Amendments to the United States Constitution; (2) the trial court erred in admitting certain evidence; (3) the trial court improperly restricted her cross-examination of a witness; (4) the trial court erred in failing to place KEH's seven-year-old sister, CA, under oath before testifying; (5) the prosecutor committed misconduct in closing argumentand her trial counsel rendered ineffective assistance in failing to object to this misconduct; (6) the trial court erred in failing to provide a jury instruction defining "deliberate cruelty"; (7) she received ineffective assistance of counsel when defense counsel failed to present certain evidence; (8) she was entitled to a change of venue because the jurors may have been aware of negative pretrial publicity about an animal cruelty case involving Hutton; and (9) cumulative error deprived her of her right to a fair trial. We affirm.
A. KEH's Father's Death; Blocked Relationship with His Family Members In May 1995, KEH was born to Theresa Hutton and Lee Auman, who never married. Auman and his family provided most of KEH's care; Hutton lived with Auman and KEH only periodically. After Auman died in a car accident in December 2000, Hutton was the parent who provided KEH's care. In September 2001, Hutton gave birth to KEH's sister, CA.
Meanwhile, in January 2001, Auman's mother, Joleen Roy, filed a successful wrongful death action that ultimately resulted in trust accounts of approximately $250,000 for each girl. Roy was also in charge of probating Auman's estate. According to Roy, within two months of Auman's death, Hutton apparently disagreed with Roy's handling of Auman's estate and tried to replace her as the personal representative; Hutton's relationship with Auman's family members, especially Roy, quickly deteriorated.
When CA was about nine months old, Hutton; CA; KEH; and Hutton's new boyfriend, Ernest Oberloh, moved from the Randle area into a fifth wheel trailer on some forested ruralproperty in or near Toledo in Lewis County. According to Hutton, they lived in this trailer for three or four years. Although they had used a generator to pump well water, there was no electricity. They used a port-a-potty for human waste. And Hutton washed their clothing "[i]n a pan on top of the wood stove." V Verbatim Report of Proceedings (VRP) at 10.
After Hutton, Oberloh, and the two girls moved to Toledo, Auman's family members noticed that KEH was not gaining weight and that she appeared to be underdressed. They tried to take the family food and clothing, but they saw KEH wear the clothing only occasionally. Auman's family members also observed KEH feeding the horses and cleaning manure out of the "barn." II VRP at 127.
Eventually, Hutton obtained money from the girls' guardianship accounts to purchase a double wide mobile home and a car. This new home had running water, electricity, two bathrooms, and a washer and dryer, and the girls had their own rooms. The girls' guardianship accounts paid for many of the ongoing household expenses.
Auman's father, Kenneth Auman, saw his granddaughter KEH fairly regularly until she was 8 or 10 years old, at which time Hutton said he could no longer see KEH.2 Hutton, however, claimed that her relationship with Auman's family members became hostile because they made "false reports" to Child Protective Services (CPS) and because Roy threatened to "kidnap [KEH] and get custody of her and whatever it took." V VRP at 17. When Hutton refused to allowAuman's family members to have contact with KEH, Roy and Auman's grandfather, Joseph Smathers, attempted to maintain their connection with KEH, often by trying to contact her or by leaving gifts for her at her school. Hutton eventually instructed the school that Auman's family was not to contact KEH, and Hutton refused gifts the Auman family left for KEH at the school.
B. Others' Observations of KEH
Hutton's neighbors Brook Blessum and Tonja Nichols observed that from 2003 or 2004 on, KEH was almost always underdressed for the weather, unkempt, dirty, smelly, and hungry. Nichols, a registered nurse, believed that KEH appeared "malnourished," and she was concerned that KEH was suffering from "failure to thrive."3 The neighbors often saw KEH doing chores, such as mending fences, hauling large bales of hay,4 and caring for the family's numerous animals5on Hutton's debris-strewn and muddy property. Nichols and Blessum gave the family clothing for KEH. When they never observed KEH wearing any of this clothing, Blessum eventually started to give the clothing to KEH directly, but Blessum never saw KEH wear any of that clothing either.
Blessum and Nichols also observed that Hutton was never affectionate with KEH; thatHutton spoke to KEH in "[a] harsh, reprimanding, scolding tone like she was angry at her"6; and would yell at KEH, use inappropriate language, call KEH a "bitch."7 Although Hutton also yelled at CA, Hutton appeared to be "more protective of" CA and did not appear to require CA to do any chores. I VRP at 40.
CA and KEH stayed at Blessum's house a couple of times. At first when Blessum asked KEH about their home life, KEH "didn't say much, she was pretty closed up."8 But when KEH was eight or nine years old, she "indicate[d to Blessum] that she was unhappy" because "her mom was really hard on her" and made her "work[] a lot."9 Blessum, an elementary school teacher, shared her concerns with an administrator at KEH's school, Toledo Elementary School.
KEH's second grade classmate and friend Elizabeth10 noticed that KEH was "always dirty," she sometimes smelled "[l]ike a barn," she was often inappropriately dressed, and she frequently had hay in her hair.11 Elizabeth let KEH hide food in her lunchbox for the bus ride home; KEH told Elizabeth that she would hide the food in the woods to eat later. KEH also told Elizabeth that Hutton was spending all of the trust account money.
KEH sometimes told Elizabeth how much she hated Hutton and wanted to run away to live on her own when she turned 16. KEH said that she had to feed and clean up after the family's animals, that she had to sleep outside, and that she was beaten. Elizabeth sometimes saw bruises on KEH's arms and legs. The one time Elizabeth tried to visit KEH at home, (1) Hutton "kicked [Elizabeth] off the property and told [her] never to come back" (2) Hutton "was angry at [KEH]" and was "screaming at" Elizabeth; and (3) Hutton told KEH that she knew better than to bring "strangers onto the property." III VRP at 49-50.
Elizabeth's mother, who was a reading specialist at KEH's school, first observed KEH in the first or second grade when her head had been shaved because of head lice. KEH was "never very clean," she sometimes smelled, she frequently lacked a coat, and she often had visible cuts, scrapes, and bruises. III VRP at 38. Hutton would not allow KEH to attend Elizabeth's birthday party, even when the invitation included Hutton and CA.
C. School
From first through fifth grades, KEH's teachers and the school staff noticed that she was (1) the smallest child in the class; (2) almost always very dirty, often with feces and dirt on her body and hands and dirt in her hair; (3) always wearing ill-fitting or inappropriate clothes, often underdressed for the weather, and often wearing the same clothes several days in a row; and (4) always hungry even though she had breakfast and lunch at school. KEH's teachers and staff frequently gave KEH extra food to take home; they also let her eat during class. People at school gave clothing to KEH's family four or five times a year. At first, Hutton returned the clothing, believing that it had come from Auman's family. But even when Hutton finally allowed KEH toaccept the clothes, KEH rarely wore any of them to school.
When KEH had head lice in first grade, the school sent her home twice before the problem was resolved; and when she eventually returned to class, someone had cut her hair "very short."12Leslie Wood, KEH's first grade teacher, noticed that KEH seemed embarrassed by the haircut and that she would not remove her hood until someone eventually brought a hat for her to wear to school. Although Wood sent notes about KEH's cleanliness issues home to Hutton, requesting a response, she never received any response from Hutton. By the fifth grade, some of KEH's teachers and the staff noticed that she reeked so strongly of an "ammonia type smell" that the other children asked to be seated away from her. II VRP at 3.
Around January 10, 2003, when KEH told Wood that Hutton had hit her in anger, Wood noticed that KEH had a bump on her head. Wood did not contact CPS, but she did report the injury to the school's main office. Two months later, Wood noticed that KEH had a "really bad toothache" from March 13 to March 21, which caused her to not eat, rendered her unable to work in school, and substantially affected how she acted throughout the day. II VRP at 161. Wood contacted the school counselor, Paula Warme; together they contacted CPS.
Warme met KEH at the start of first grade. Warme was aware that KEH's father had recently died and that KEH had lived with her father's family before moving to the area with her mother. Warme found KEH to be "incredibly sad and reserved and quiet."13 Warme firstcontacted CPS when KEH was in first...
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