State v. Hyder

• Decision Date: 04 January 2011
• Docket Number: No. 37267-3-II.
• Citation: State v. Hyder, 244 P.3d 454, 159 Wash.App. 234 (Wash. App. 2011)
• Parties: STATE of Washington, Respondent, v. Jack T. HYDER, Appellant.
• Court: Washington Court of Appeals

244 P.3d 454

159 Wash.App. 234

STATE of Washington, Respondent,

v.Jack T. HYDER, Appellant.

No. 37267-3-II.

Court of Appeals of Washington, Division 2.

Jan. 4, 2011.

Lenell Rae Nussbaum, Attorney at Law, Seattle, WA, for Appellant.

Katherine Lee Svoboda, Grays Harbor Co. Pros.Ofc., Montesano, WA, for Respondent.

LEACH, J.

¶ 1Jack T. Hyder appeals his convictions for second degree child molestation and second degree incest.He challenges the admission of his therapists' statements and the procedures used by the State to become aware of these statements.He also claims that the trial court improperly seated a juror and erred in imposing an exceptional sentence.

¶ 2 Because a mandatory reporting statute¹ makes inapplicable any therapist-client privilege and the investigating officer properly employed a search warrant to obtain the therapists' records, the trial court did not err in admitting the therapists' statements.Hyder waived any objection to the manner in which the challenged juror was seated.Because the issue of whether the statutory aggravating factors found by the jury are substantial and compelling is not a jury question, the trial court appropriately decided this issuein imposing an exceptional sentence.Hyder's judgment and sentence leaves unclear whether the combined terms of incarceration and community custody exceed the statutory maximum.Therefore, we remand for clarification of the community custody term and otherwise affirm Hyder's convictions and sentence.

FACTS

¶ 3 Hyder married Judy D'Angelo in 1982.Their marriage produced 11 children, 2 of whom passed away before the beginning of this case.Evelyn Hyder, born on December 28, 1984, is the second oldest of Hyder's children and hisoldest daughter.The children were all home schooled by their parents.

¶ 4 The children were active in church and had music lessons.But for the most part, they were kept at home and isolated from other people.The children were expected to complete daily chores.Their father, Hyder, was the only one who worked outside the home.He was a veterinarian and maintained his own practice.Hyder was a strict disciplinarian and could be physically violent when he was angry.He conducted room inspections every morning.On occasion Hyder beat the children with a belt for small infractions, e.g., a pillow left too flat on a bed or the girls' failure to oversee dinner preparation to his standards.These beatings sometimes produced welts and bruises up and down the children's bodies.

¶ 5 Evelyn testified at trial that when she was about 11 years old, Hyder began coming into her room at night and taking her into his library.Hyder would lie with Evelyn on a guest bed in the library.Naked underneath his robe, he would make Evelyn stroke his penis.He would also put his mouth on her breasts and bite them.

¶ 6 This sexual contact occurred frequently and then tapered off.But when Evelyn turned 13, the sexual contact became more frequent again.Hyder would kiss, push, and play with Evelyn's breasts until they were sore.He also touched inside her vagina and rubbed his naked body against hers.Evelyn described an incident when she was 15, where her father"started with the kissing the breasts and touching inside [Evelyn's] vagina, having [her] massage his penis," and then picked her up and put her on his lap so they were facing each other.He rubbed his penis against Evelyn's genitals, and she could feel the head of his penis against her vagina.

¶ 7 Evelyn's siblings observed contact they believed was inappropriate between her and her father.This contact included observing Hyder kissing Evelyn repeatedly up anddown her neck.One time Evelyn's older brother, Luke, while studying at his desk in a nearby room, also heard kissing for approximately eight minutes coming from Hyder's office.When Luke walked into his father's office, he saw Hyder kissing Evelyn.Evelyn's sister Rosey also observed Hyder sliding his hand up Evelyn's shirt and rubbing Evelyn's breasts while he told the other children to go outside and play.²

¶ 8 Hyder told Evelyn that she would ruin the family if she told anyone about his conduct with her.When Evelyn was about 14, she finally confided in a priest during confession.The priest gave her penances but took no further action.³At another confession, a different priest, not realizing she was home schooled, made her promise to tell a teacher about her father's sexual abuse.When she was 17, Evelyn confided in yet another priest, but he instructed her that telling anyone else would ruin her family.Evelyn testified that as she grew older she continued to comply with her father's sexual demands because if she"didn't want to massage his penis or anything like that,"he would become violently angry, finding trivial reasons to beat her and the other children with his belt during the following day.⁴

¶ 9 Evelyn's mother, Judy, testified for the defense, stating that she frequently woke up at night and always saw Hyder beside her, soundly sleeping.But Evelyn testified that her mother had discovered Evelyn and her father late one night in his study and saw Hyder molesting Evelyn, and Evelyn knew that her mother knew what was going on.Rosey also testified that when she and Evelyn tried to telltheir mother about how Hyder kept them both up late at night "kissing" them, she would not help.⁵Judy's sister, Donna D'Angelo, testified that while Judy and the children were in New York, Judy's behavior indicated that her allegiance was to Hyder and not to the children.

¶ 10 In June 2002, as Luke was preparing to leave for West Point, Evelyn finally told him about Hyder's conduct.Luke confronted his father, who became angry and told Evelyn that his conduct was her fault.The next day Evelyn's mother left to travel with Luke to West Point as planned.Hyder drove them to the airport in Seattle.While Hyder drove to the airport, Evelyn called her aunt, Donna D'Angelo, in New York and confided in her about the molestation.

¶ 11 When Judy arrived in New York, Donna told her about Evelyn's telephone call.Donna convinced Judy to report the matter to Child Protective Services (CPS) and to move the children to New York.With the help of family and friends, Donna and Judy did so.Judy testified that she told Hyder he had to seek treatment and admit the molestation before the family could be reunited.

¶ 12 In the fall of 2002, Hyder sought treatment from a sex offense treatment provider, Trudy Hoy.Hyder admitted to her repeated sexual contacts with Evelyn beginning when she was 12 years old.Hyder also told her that he was concerned about his behavior toward Rosey, that he did not want his behavior to escalate, and that he wanted to be able to stop his behavior and not sexually offend Rosey the way he had Evelyn.

¶ 13 CPS referred the reported abuse to the Grays Harbor County Sheriff's Office in 2002, but the Hyder children, who were then in New York with their mother, did not come forward with statements.Eventually, Evelyn, Rosey, and Luke provided statements to the Grays Harbor County Sheriff's Office in 2003 and 2004 that culminated in a report to the prosecutor's office for charging.

¶ 14 On December 21, 2005, the State charged Hyder with seven counts as follows: first degree child rape regarding Rosey (count I), first degree child molestation regarding Rosey (count II), first degree child rape regarding Evelyn (count III), first degree child molestation regarding Evelyn (count IV), second degree child rape regarding Evelyn (count V), second degree child molestation regarding Evelyn (count VI), and second degree incest regarding Evelyn (count VII).The State alleged aggravating factors to support an exceptional sentence above the standard range: the offense was part of an ongoing pattern of sexual abuse of the same victim under the age of 18 years, manifested by multiple incidents over a prolonged period of time, RCW 9.94A.535(3)(g), and the defendant used his position of trust or confidence to facilitate the commission of the current offense, RCW 9.94A.535(3)(n).When these charges were filed, the court ordered no contact between the Hyder children and their father.

¶ 15 In November 2006, Hyder moved to review the CPS file on Evelyn for evidence useful to the defense.Both parties agreed to the trial court's suggestion that both parties' counsel review copies of the CPS file instead of the court conducting an in camera review.During that review, the parties discovered that Hyder's therapist had filed a report with CPS regarding Hyder's admitted abuse of Evelyn.Because this discovery was made on the eve of trial, the defense moved for a continuance, which the court granted.

¶ 16 The investigating detective on Hyder's case obtained and executed a search warrant at the therapist's office regarding Hyder'streatment records, and the State later called Hyder's therapist, Trudy Hoy, and her forensic evaluator, Ronald Yunck, as witnesses.Before trial, Hyder moved to suppress Hoy's and Yunck's testimony, but the trial court denied the motion.

¶ 17 Trial ultimately occurred in November 2007.Evelyn testified regarding Hyder's abuse as above described.Hoy and Yunck also testified about statements Hyder made tothem describing multiple incidents when he sexually abused Evelyn.⁶Judy testified that at first she believed Evelyn's allegations of sexual abuse by her father but later decided the allegations were "unbelievable" and "like something from a novel."At the close of evidence, the court directed a verdict of not guilty on counts III and IV, ruling there was insufficient evidence that Evelyn was abused before age 12.

¶ 18 The jury found Hyder not guilty of sexually abusing Rosey, counts I and II, and not guilty of sexual intercourse with Evelyn, count V.The jury found Hyder guilty of count VI, second degree child molestation of Evelyn, and count VII, second degree incest against Evelyn.⁷The jury responded "yes" on both special...