State v. Kirkman

CourtUnited States State Supreme Court of Washington
Citation155 P.3d 125,159 Wn.2d 918
Docket NumberNo. 77596-6.,No. 76833-1.,76833-1.,77596-6.
PartiesSTATE of Washington, Petitioner, v. Charles L. KIRKMAN, Respondent. State of Washington, Petitioner, v. Ruben Jaurez Candia, Respondent.
Decision Date05 April 2007
155 P.3d 125
159 Wn.2d 918
STATE of Washington, Petitioner,
Charles L. KIRKMAN, Respondent.
State of Washington, Petitioner,
Ruben Jaurez Candia, Respondent.
No. 76833-1.
No. 77596-6.
Supreme Court of Washington, En Banc.
Argued February 7, 2006.
Decided April 5, 2007.

[155 P.3d 128]

Kimberley Robert Farr, Clark County Prosecuting Attorney's Office, Michael C. Kinnie, Vancouver, WA, Wendy Harmon Hanson, Bend, OR, for Petitioner.

Lisa Elizabeth Tabbut, Longview, WA, James J. Sowder, Vancouver, WA, for Respondent.

Teresa Jeanne Chen, Grant County Prosecutors Office, John Dietrich Knodell III, Ephrata, WA, for Amicus Curiae on behalf of Washington Association of Prosecuting Attorneys.


¶ 1 Petitioner State of Washington appeals two Court of Appeals' opinions reversing jury convictions. Respondent Charles L. Kirkman (Kirkman) was convicted of first degree rape of an eight-year-old girl. Respondent Ruben Jaurez Candia (Candia) was convicted on four counts of first degree rape of a child. The combined cases raise the common issue of whether a trial court allowed testimony of an investigating officer or examining doctor, argued to be improper, as supporting the victims' credibility; and if so, whether the error was "manifest" constitutional error that may be asserted for the first time on appeal.

¶ 2 This court holds that opinion testimony relating only indirectly to a victim's credibility, if not objected to at trial, does not give rise to a "manifest" constitutional error. Accordingly, this court reverses both Court of Appeals' opinions and affirms the convictions in both cases.



¶ 3 The State's evidence indicated Kirkman sexually assaulted eight-year-old A.D. in the early morning of December 29, 2002. Specifically, Kirkman removed A.D.'s clothing and touched her vaginal area with his finger. After the assault, A.D. called her aunt for help. She told her aunt that Kirkman had touched her privates, inside her underwear.

¶ 4 The State charged Kirkman with one count of first degree child rape on April 29, 2003. A pretrial competency hearing was conducted to determine whether A.D. could testify at trial. At this hearing, A.D. testified that Kirkman had touched her vagina and anus. The State also called Detective Kerr, an employee of the Child Abuse Intervention Center, who interviewed A.D. about the alleged sexual abuse. Kerr testified that during the interview, he asked A.D. if she promised to tell the truth, and she responded, "I promise." 1 Report of Proceedings (RP) (July 15, 2003) at 35. Kerr asked A.D. what happened on December 30, and she repeated what she had told her aunt. The trial court found A.D. competent to testify and held A.D.'s statements to her aunt, C. Landeros, and to Kerr admissible.

¶ 5 At trial the State's first witness was Kerr. He stated he had given preliminary competency protocol to determine A.D.'s ability to tell the truth and obtained A.D.'s promise to tell the truth before she related the events. Kirkman did not object to Kerr's testimony.

¶ 6 The State also called Dr. John Stirling. He examined A.D. on February 27, 2003, at the Vancouver Clinic. The State asked him, "Based upon the physical examination, can you tell us whether you have an opinion within a reasonable degree of medical certainty of whether the physical examination was consistent with the girl's explanation of what occurred?" 2 RP (July 23, 2003) at 173. Dr. Stirling responded that he found nothing in the physical examination to make him doubt A.D., but that there was also nothing to confirm A.D.'s explanation. Kirkman did not object.

¶ 7 The State then asked Dr. Stirling for his general assessment of the case. He stated that the physical examination did not confirm A.D.'s story, but she had described sexual touching with appropriate affect ("sad when one would expect her to be sad, and reluctant to talk about things that were embarrassing . . . and the vocabulary seemed to be appropriate for a young lady of her age."). Dr. Stirling also stated that A.D.'s history was "clear and consistent" with plenty of

155 P.3d 129

detail. 2 RP at 176. Again, Kirkman did not object. The jury found Kirkman guilty of first degree child rape.

¶ 8 Kirkman appealed, arguing for the first time that Detective Kerr and Dr. Stirling had offered opinions supporting A.D.'s credibility, invading the exclusive province of the jury to determine guilt. In a split, published opinion (Quinn-Brintnall, C.J., dissenting), the Court of Appeals agreed. State v. Kirkman, 126 Wash.App. 97, 104, 107 P.3d 133 (2005). The appeals court concluded the error was a "manifest error that affects a constitutional right" and held that Kirkman could raise the issue on appeal despite not objecting at trial. Id. at 106, 107 P.3d 133. The court determined the error was prejudicial and reversed and remanded for retrial. Id. at 107, 107 P.3d 133. The State petitioned for this court's review, which was granted. State v. Kirkman, 155 Wash.2d 1014, 124 P.3d 304 (2005).


¶ 9 The State's evidence indicated Candia sexually assaulted six-year-old C.M.D. on numerous occasions. The acts consisted of vaginal penetration, sodomy, and fellatio.

¶ 10 Candia was charged with four counts of rape of a child in the first degree, occurring between November 1, 1999, and March 31, 2003. A pretrial competency hearing of C.M.D. was held on December 4, 2003. Following testimony of C.M.D., her mother, Misty Dudley, and Detective Deborah Greer, the court found C.M.D. competent to testify at trial. The court found statements made by C.M.D. to Dudley and Detective Greer met the reliability factors and were admissible under the child hearsay statute, RCW 9A.44.120, and State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984).

¶ 11 The matter went to a jury trial on February 2, 2004. At trial, Dr. John Stirling was called to testify about his findings from physical examinations conducted on C.M.D. on May 31, 2001, and October 9, 2003. Dr. Stirling testified that there was no physical evidence of sexual contact. The State also asked Dr. Stirling, "Do you have an opinion with medical certainty whether the findings you observed are consistent with the history of abuse you were given?" 2B RP (Feb. 2, 2004) at 251. He responded, "So you're asking how we could reconcile a normal examination with the story that she had been sodomized and that he had inserted something into her genitalia?" Id. at 251-52. Dr. Stirling then replied, "to have no findings after receiving a history like that is actually the norm rather than the exception." Id. at 252.

¶ 12 Dr. Stirling also testified about statements C.M.D. made to him during the course of those examinations. Dr. Stirling stated C.M.D. "had good language skills for her age, she spoke clearly." Id. at 244. He then testified to C.M.D.'s disclosures of being anally and vaginally raped. Candia did not object to the testimony.

¶ 13 Detective Greer testified about statements made to her by C.M.D. on August 14, 2003. Detective Greer described the competency protocol she administered to gauge C.M.D.'s ability to distinguish between a truth and a lie. Id. at 310. Detective Greer stated that "I remind them, that I'm there to talk about something very, very important with them, and I ask them to make a promise to tell me the truth." Id. at 311. Detective Greer then related what C.M.D. told her. These statements included descriptions of many acts of sexual intercourse, including penetration. C.M.D. described how some of these acts felt. She also talked about several residences and described in which room the acts occurred. Candia did not object to this testimony.

¶ 14 C.M.D. also took the stand and was cross-examined by defense counsel. C.M.D. described how Candia orally, vaginally, and anally raped her. She explained it felt bad and "hurted." Id. at 286. She also testified about their several residences and the rooms in which each act occurred. Candia was convicted by the jury on all four counts on February 4, 2004. Candia appealed.

¶ 15 Relying upon its decision in Kirkman, a divided panel of the Court of Appeals (Quinn-Brintnall, C.J., dissenting) reversed the trial court and remanded for a new trial. State v. Candia, noted at 128 Wash.App. 1053, 2005 WL 1753622, 2005 Wash.App.

155 P.3d 130

LEXIS 1871. It ruled that Dr. Stirling and Detective Greer improperly and prejudicially offered opinions supporting C.M.D.'s credibility. Id., 2005 WL 1753622, at *2, at *6. The majority held that admission of these opinions constituted "manifest error affecting a constitutional right" that could be raised for the first time on appeal even if no objection was made at trial. Id., 2005 WL 1753622, *8, at *25. The State petitioned for this court's review, and it was granted. State v. Candia, 155 Wash.2d 1015, 124 P.3d 304 (2005).


¶ 16 The State argues that Kirkman failed to preserve his claims of error and the Court of Appeals should not have reached the merits of his allegations. We agree, but necessarily also discuss the errors alleged.

¶ 17 A party may assign evidentiary error on appeal only on a specific ground made at trial. State v. Guloy, 104 Wash.2d 412, 422, 705 P.2d 1182 (1985), cert. denied, 475 U.S. 1020, 106 S.Ct. 1208, 89 L.Ed.2d 321 (1986). This objection gives a trial court the opportunity to prevent or cure error. State v. Boast, 87 Wash.2d 447, 451, 553 P.2d 1322 (1976). For example, a trial court may strike testimony or provide a curative instruction to the jury.

¶ 18 In these cases, the respective defendants failed to object or move to strike allegedly erroneous evidence and did not give the trial courts such an opportunity. Thus, neither defendant preserved the issue for appellate review.

¶ 19 Both Kirkman and Candia argued to avoid this preservation requirement at the Court of Appeals by asserting constitutional bases for the alleged errors. Both defendants...

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