State v. Ott
Decision Date | 24 October 2022 |
Docket Number | 82624-7-I |
Parties | STATE OF WASHINGTON, Respondent, v. ERIC CLINTON OTT, Appellant. |
Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Eric Ott appeals his conviction for one count of incest in the first degree. Ott argues that the evidence was insufficient to prove the crime of incest. Ott also argues that the trial court abused its discretion under ER 608(b), and violated his Sixth Amendment right to confrontation when it limited the scope of his cross-examination of the alleged victim, T.P based on several prior instances of dishonesty.
We affirm.
T.P was born in 1996. At that time, Ott and T.P.'s biological mother were married. Because both parents were facing terms of incarceration when T.P. was born, they relinquished their parental rights to her when she was two months old. T.P. was legally adopted by her maternal grandparents, and maintained contact with her parents while growing up. T.P. visited her father in prison when she was 4 or 5 years old, and beginning at age 12, visited him 5 times before he was released. The two also often sent letters to each other and sometimes spoke on the phone. T.P. was close to Ott despite their physical separation and he was "the only person that [T.P.] would tell a lot of personal things to." Ott was released from prison in 2013 when T.P. was 18 years old.
Ott married Lacey in 2015.[1] Lacey and T.P. had a strained relationship. T.P. felt Lacey monopolized Ott's time. T.P. and Ott rarely visited because doing so "seemed to cause problems with [Ott's] marriage." Ott started to ignore T.P.'s phone calls; sometimes the two would only speak every few months.
Ott distanced himself from T.P. after she began using methamphetamine in 2017. While he told T.P. that her drug use was the reason he distanced himself, he was using methamphetamines as well. T.P. traveled to Washington from Arizona where she lived with her grandparents. On a night that Lacey was away, Ott invited T.P. to his home in Kirkland. Ott and T.P. used methamphetamines and conversed with Ott lamenting that he "promised . . . to be more involved" in her life.
The next morning, Lacey returned and demanded that T.P. leave after she accused her of stealing. Angry, Ott left with T.P. and told Lacey "if my own kid can't be here, then I'm not going to be here either." Ott booked the two a motel room. Because of limited vacancy, the room had a single bed. T.P. and Ott spent the day using methamphetamines and watching YouTube videos.
Before sleeping, Ott began caressing T.P., "which eventually resulted in [them] having sex." T.P. claimed she agreed to have sex with Ott because she was afraid he would choose his relationship with Lacey over her unless she satisfied his needs. T.P. stated that she and Ott used methamphetamines and had sexual intercourse almost every day for the next several months. Ott told T.P. that other cultures tolerate incest. On November 9, 2018, Ott told T.P. that he needed to get some money from a friend. Instead, Ott returned to Lacey.
On November 29, 2018, Kirkland Police Detective Jacob Thune contacted T.P. in an unrelated matter over "circumstances that involved people at Lacey Ott's residence." Over the course of a few phone calls, T.P. developed a rapport with Thune. She eventually disclosed Ott's behavior and gave consent for police to search her phone.
On November 30, 2018, T.P. met with Thune and Detective Clayton Slominski. She told the detectives that she and Ott engaged in multiple acts of consensual sex and that Ott raped her once. She brought an LG Stylo 4 phone and a ZTE Max Blade 2 phone to the meeting. Incriminating text messages and photographs transmitted between Ott and T.P. were discovered on T.P.'s phone, including: (1) an image of Ott and T.P. lounging on a couch with ice packs over their genitals; (2) a text message from T.P. to Ott stating that "all I want to do right now is go back to the room and make love to you"; (3) a text message where Ott asked T.P. to "flash me in the bathroom window"; (4) an exchange where T.P. mentions smelling like Ott's cologne; (5) an exchange where Ott tells T.P. there are muffins for her in the kitchen and T.P. responds "[a]nd there is a muffin for you in my pants," to which Ott replies "fuck yes"; (6) a message where T.P. tells Ott that she wants to "eat some meth, and suck your cock"; and (7) several erotic photographs T.P. sent of herself to Ott.
On December 7, 2018, Ott was arrested and he agreed to give a recorded statement. Ott acknowledged that T.P. was his daughter, admitted to using drugs with T.P., and explained that he left to get sober. He said T.P. started "spreading malicious stuff and talking bad about me." When asked about his sexual relationship with T.P., Ott responded, "[w]hy would you ask me a question like that?" Ott later admitted he was "not surprised that you're accusing me of it." Ott explained that the text messages were "extremely interpretive."
When shown a nude photograph that T.P. sent to Ott, he replied: "My-my daughter is an adult." In response to the message where T.P. offered to "suck [his] cock," Ott explained:
I interpret that as myself and my daughter having a few different instances where she needed to be corrected about her behavior. That's how I interpret it.
During the interview, Ott insisted that the text messages, nude pictures, and time in hotel rooms does not prove the two were having sex. After the recording, Ott told Slominski that "I just want you to know off the record, I never raped her."
The State charged Ott with one count of second degree rape and three counts of first degree incest. A jury acquitted Ott of second degree rape but convicted him on all three counts of first degree incest. The court imposed a sentence within the standard range.
Ott appeals.
Ott argues first that the evidence was insufficient to prove the crime of incest because the State failed to prove that T.P. was his biological daughter. We disagree.
We review the sufficiency of the evidence to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Luther, 157 Wn.2d 63, 77-78, 134 P.3d 205 (2006); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). A defendant claiming insufficient evidence "admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom." State v. Scanlan, 193 Wn.2d 753, 770, 445 P.3d 960 (2019) (quoting State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). A sufficiency analysis is "highly deferential" to the jury's verdict. State v. Davis, 182 Wn.2d 222, 227, 340 P.3d 820 (2014). Whether sufficient evidence exists is a question of law reviewed de novo. State v. Rich, 184 Wn.2d 897, 903, 365 P.3d 746 (2016).
A person commits the crime of incest in the first degree if "he or she engages in sexual intercourse with a person whom he or she knows to be related to him or her . . . as a[] . . . descendant." RCW 9A.64.020(1)(a). Under the statute, "descendant" includes children and adopted children under 18. RCW 9A.64.020(3)(a). Thus, a person 18 or older is a "descendant" only if they are biologically related to the person charged. State v. Hall, 112 Wn.App. 164, 167-69, 48 P.3d 350 (2002) ( ).
Ott was married to T.P.'s biological mother when T.P. was born and Ott was therefore presumed to be T.P.'s father as a matter of law. RCW 26.26A.115(1)(i). T.P. testified that Ott was her father and Ott acknowledged the same. Ott never denied that T.P. was his biological daughter.
Ott argues that there is insufficient evidence that T.P. was his biological "descendant" because the State did not confirm their relationship with DNA testing or "a sworn statement attesting to biological paternity." Instead, Ott claims that presumed paternity, under the Uniform Parentage Act conferred legal paternity on men but that this presumed paternity does not prove Ott is T.P.'s biological father.
Ott fails to offer Washington authority supporting his claim that DNA testing is required to prove a biological relationship to support the crime of incest. In State v. Coffey, 8 Wn.2d 504, 505-06, 112 P.2d 989 (1941), and State v. Davis, 20 Wn.2d 443, 446-47, 147 P.2d 940 (1944), the Washington Supreme Court held that uncorroborated testimony of a complaining witness in an incest case is enough to sustain a conviction. The Davis holding was more recently affirmed in State v. Chenoweth, 188 Wn.App. 521, 536, 354 P.3d 13 (2015) ( ). There is no support for the argument that the Washington courts specifically require DNA testing or a sworn statement to prove that Ott is T.P.'s biological father.
Other jurisdictions have expressly rejected Ott's argument. In State v. Ware, 188 N.C.App. 790, 793-94, 656 S.E.2d 662 (2008), the court found sufficient evidence of a biological relationship without DNA testing:
The victim testified at trial that defendant was her biological father and identified him in open court. Furthermore, the victim's birth certificate, clearly identifying defendant to be the victim's father, was admitted into evidence. Both the victim's testimony and her birth certificate are direct evidence of defendant's paternity. The crime of incest was first created by our legislature long before the advent of DNA or blood type paternity testing. . . . We hold that witness testimony and...
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