State v. James

• Court: Washington Court of Appeals
• Writing for the Court: Melnick, J.
• Decision Date: 31 March 2015
• Docket Number: 44906-4-II
• Citation: State v. James, 44906-4-II (Wash. App. Mar 31, 2015)
• Parties: STATE OF WASHINGTON, Respondent, v. ROBERT E. JAMES, Appellant.

STATE OF WASHINGTON, Respondent, v. ROBERT E. JAMES, Appellant.

No. 44906-4-II

Court of Appeals of Washington, Division 2

March 31, 2015

UNPUBLISHED OPINION

Melnick, J.

Robert E. James appeals his jury conviction for rape in the second degree.^[1]He argues that the trial court abused its discretion by admitting the survivor's statement as recorded recollection under ER 803 (a)(5), and that the State presented insufficient evidence to prove beyond a reasonable doubt that James committed rape in the second degree. In his statement of additional grounds (SAG), James further asserts that the trial court erred by instructing the jury on defense of consent, the trial court improperly instructed the jury on the lesser degree rape in the second degree, and ineffective assistance of counsel. Rejecting James's arguments, we affirm.

FACTS

I. Substantive Facts

On June 30, 2012, SC was inebriated and accepted a ride from James as she stumbled down the road. After driving around and purchasing alcohol, they went to the Thunderbird Motel and rented a room. A motel employee, Charlie Kim, saw S.C. in James's car drinking whiskey, and saw S.C. and James "hugging and kissing in the parking lot." Report of Proceedings (RP) (Mar. 26, 2013) at 38.

A number of tenants at the motel became involved, including Wendy Taylor and Christa Anderson. Wendy Taylor heard screaming coming from James's room. She described what she heard as "crying, screaming real bad, somebody got hurt." RP (Mar. 26, 2013) at 53. The next morning, Kim found S.C. in the doorway of the motel room. S.C. was nude and had blood on her. She said to Kim, "'Rape, rape. I'm hurt, hurt. Call the police.'" RP (Mar. 26 2013) at 36.

Kim asked another tenant, Christa Anderson, to help S.C. Anderson observed blood and feces on the back of S.C.'.s leg. As she helped S.C. get dressed, SC was in pain and said she was "raped." RP (Mar. 26, 2013) at 62. S.C. told Anderson she was raped "from her backside." RP (Mar. 26, 2013) at 64. Anderson knew S.C. and said S.C. was groggy, drowsy, and "droggier [sic] than normal." RP (Mar. 26, 2013) at 63. Additionally, Anderson observed a "trashed" motel room with the phone ripped out of the wall. RP (Mar. 26, 2013) at 62.

Law enforcement responded and transported S.C. to the hospital where Officer Jason Capps interviewed her, shortly after S.C.'s arrival. During the interview, he observed a bruise on S.C.'s neck. Officer Capps obtained a written statement from S.C. S.C. could not write at that time, so Officer Capps wrote the statement for her and read it back to her. When Officer Capps showed S.C. a photo lineup, she identified James as the man who raped her. S.C. testified that the man in the photo lineup is the same person she was with in the motel room.

Nurse Miriam Thompson examined S.C. Thompson observed a milky white liquid between S.C.'s buttocks cheeks and obtained an anal swab. During the examination, SC reported that James anally penetrated her with his penis. S.C. further stated that James, while on top of S.C, had his hands around her neck and strangled her. Thompson observed small red marks on S.C.'s neck, but no blood. Thompson also noted that S.C had a clear voice, could swallow and drink, and did not have tissue swelling to her airway. During the exam, SC told Thompson that she had multiple personalities. However Thompson testified that she didn't recognize any odd personality when she examined S.C.

The medical staff diagnosed S.C. with an anal tear. As a result of the assault, she spent ten days in the hospital, required three surgeries, and needed a colostomy bag for two months.

The police investigation of the motel room revealed several empty and partially empty alcohol containers. Various articles of clothing were scattered around the room, including S.C.'s underwear and a pair of James's underwear, both stained with James's blood. The bathroom sink of the motel room contained a white washcloth with blood and feces on it.

James provided a DNA^[2] sample to law enforcement. The State presented evidence that a swab from S.C.'s neck contained a mixed DNA profile consistent with James and S.C. The entire male DNA located on S.C. matched James. The anal swab obtained from S.C. contained P30, a protein commonly found in semen. However, it could not be matched to a DNA profile because it did not contain sperm cells or ejaculate.

The State, by amended information, charged James with rape in the first degree.^[3]

II. Recorded Recollection

Before trial, the State notified the court that it expected S.C. to have considerable difficulty remembering the events of June 30 to July 1, 2012. Therefore, the State expected to offer S.C.'s statement to Officer Capps under the recorded recollection exception to the hearsay rule.^[4] As anticipated, SC proved to have insufficient recollection to testify fully and accurately. S.C. testified that her problem with alcohol affects her long-term memory. She had trouble remembering everything that happened, but did recall being in the motel room. She remembered "crawl[ing] over to the door" nude to seek help because her stomach and "behind" hurt too much to walk. RP (Mar. 26, 2012) at 8, 9.

During trial, the State questioned S.C. about her statement to Officer Capps, and S.C. identified her signature on the statement. She initially testified that she may have signed an inaccurate statement. However, SC also testified that it would be her normal habit to tell the truth to a police officer and that the information she gave to Officer Capps is what she remembered happening. Officer Capps testified that S.C. was coherent, cooperative, and did not have trouble communicating when she made the statement. She signed the statement voluntarily.

After hearing the statement and the testimony of S.C. and Officer Capps, the trial court excused the jury, heard argument, and found that the State demonstrated the necessary foundation ER 803(a)(5) requires and admitted S.C.'s statement. The court commented,

I don't think [S.C] was at all trying to portray that it's not what she said to the officer[, ] . . . she, in fact, was doing her best I guess at the time to state what happened accurately. The officer who was taking it down said he [did so] accurately, he read it back to her and she agreed that that's what she recalled subjectively.

RP (Mar. 26, 2013) at 101.

III. Jury Instructions

The State proposed a jury instruction on the lesser included crime of rape in the second degree. James objected to the instruction on the grounds that the State had not offered sufficient evidence of mental incapacity. The trial court overruled his objection and submitted the instruction to the jury. The jury returned a verdict finding James guilty of rape in the second degree. James appeals.

ANALYSIS

I. Past Recollection Recorded

James argues that the trial court abused its discretion by admitting the statement because the State did not prove by a preponderance of the evidence that the statement pertains to a matter about which S.C. once had knowledge, that S.C. made the statement when the matter was fresh in her memory, and that the record reflects S.C.'s prior knowledge accurately. We disagree and hold that the trial court did not abuse its discretion.

A. Standard of Review

We review admission of statements under ER 803(a)(5) for an abuse of discretion. State v. Derouin, 116 Wn.App. 38, 42, 64 P, 3d 35 (2003). "A trial court abuses its discretion if it improperly applies an evidence rule." State v. Nava, 177 Wn.App. 272, 289, 311 P.3d 83 (2013, review denied, 179 Wn.2d 1019 (2014). The proponent of the statement must establish the elements of a required foundation by a preponderance of the evidence. State v. Benn, 120 Wn.2d 631, 653, 845 P.2d 289 (1993). "The preponderance of the evidence standard requires that the evidence establish the proposition at issue is more probably true than not true." Mohr v. Grant, 153 Wn.2d 812, 822, 108 P.3d 768 (2005). We uphold the trial court if its determination of the preliminary questions is supported by substantial evidence. Benn, 120 Wn.2d at 653. Substantial evidence is evidence sufficient to persuade a rational, fair-minded person of the asserted premise. State v. Homan, 181 Wn.2d 102, 106, 330 P.3d 182 (2014).

B. The Trial Court Properly Admitted S.C.'s Statement as a Recorded Recollection

A recorded statement given to police is inadmissible hearsay unless it falls under an exception to the hearsay rule ER.802. ER 803(a)(5) is one such exception.

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

ER 803(a)(5). "A recorded recollection is admitted as substantive evidence." Nova, 177 Wn.App. at 290.

Before a recorded recollection may be admitted, the proponent of the evidence must demonstrate, by a preponderance of the evidence, that:

(1) the record pertains to a matter about which the witness once had knowledge, (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony, (3) the record was made or adopted by the witness when the matter was fresh in the witness's memory, and (4) the record reflects the witness's prior knowledge accurately.

Nava, 177 Wn.App. at 290.

1. The record pertains to a matter about which S.C. once had knowledge. Substantial evidence supports the trial court's findings that the...