State v. Pascuzzi
| Decision Date | 23 January 2013 |
| Docket Number | No. 42001-5-II,42001-5-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. ANTHONY JOSEPH PASCUZZI, Appellant. |
Quinn-Brintnall, J. — A jury found Anthony Joseph Pascuzzi guilty of two counts of first degree child molestation. The jury also found that Pascuzzi abused a position of trust to commit the crimes. Pascuzzi appeals, alleging that (1) he received ineffective assistance of counsel, (2) the trial court erred by admitting evidence of flight, (3) the abuse of trust jury special verdict form was improper, and (4) the trial court's community custody provision requiring Pascuzzi to submit to searches is unconstitutional. Pascuzzi also filed a statement of additional grounds (SAG)1 disputing the calculation of his offender score. We affirm.
In July 2009, Pascuzzi was considered a close family friend of Kimberly Block and her children. On July 9, Block, her two daughters, M.M. and K.K.,2 and her five-year-old son were at home with several friends, including Pascuzzi. C.B., K.K.'s friend, was also at the house visiting K.K. K.K. and C.B. were 11 years old. K.K. and C.B. went to bed around 9 pm.
Several hours later, K.K. woke up with a migraine headache. K.K. was crying and woke up C.B. Pascuzzi and Block checked on the girls. Block got the girls some medicine and Pascuzzi began to run the girls a bath. After giving K.K. the medicine, Block went back to sleep. K.K. and C.B. then went into the bathroom.
Pascuzzi had both girls go to the bathroom in front of him. Then he took C.B.'s clothes off and put her in the bathtub. K.K. then got into the bath with C.B. because she did not want to leave C.B. alone. Pascuzzi also had the girls wash each other's hair. Pascuzzi had the girls sit in the tub facing each other. He then spread the girls' legs apart. Pascuzzi touched the girls' breasts and tried to kiss them. When Pascuzzi left the bathroom to get the girls some water, the girls locked the bathroom door. After getting out of the bathtub, the girls went into M.M.'s room and told her what had happened. M.M. took the girls to Block's room and the girls told Block what happened. Pascuzzi had already left the house. Block then reported the incident to the police.
On August 11, 2009, the State filed an information charging Pascuzzi with two counts of first degree child molestation and alleging abuse of trust as an aggravating circumstance. RCW 9A.44.083; RCW 9.94A.535(3)(n). On March 3, 2010, the State filed an amended informationalleging two additional aggravating circumstances: (1) Pascuzzi's multiple current offenses and high offender score result in some of the current offenses going unpunished (free crimes), and (2) Pascuzzi's unscored misdemeanor criminal history results in a sentence that is too lenient. RCW 9.94A.535(2)(c), .(b).3
A jury trial began on February 2, 2011. The State called nine witnesses: Deputy Bryan Skordahl of the Clark County Sheriff's Office, Block, K.K., Shelley Bianchi, Irene Sheppard from the Southwest Washington Medical Center, Deputy Albin Boyse of the Clark County Sheriff's Office, C.B., Detective Cindy Bull of the Clark County Sheriff's Office, and Deputy Scott Bain of the Clark County Sheriff's Office. The defense called Angela Stangle, Pascuzzi's common-law wife. Pascuzzi also testified. The State called M.M. as a rebuttal witness.
On February 3, 2011, the jury returned a verdict of guilty on both counts of first degree child molestation. The jury also found that Pascuzzi "use[d] his position of trust to facilitate a crime." Clerk's Papers (CP) at 143, 145. Pascuzzi's offender score was calculated at eight points, resulting in a standard sentencing range of 129 to 171 months. Based on the aggravating factors found by the jury, the trial court found substantial and compelling reasons to impose an exceptional sentence above the standard range. Pascuzzi was sentenced to a minimum of 200 months confinement with the statutory maximum of life imprisonment. Pascuzzi timely appeals.
Pascuzzi alleges that he received ineffective assistance of counsel because his trial counsel failed to object to (1) hearsay statements in Block's testimony, (2) the State asking K.K. and C.B. if they were being truthful, and (3) Detective Bull's testimony that Pascuzzi never spoke to her regarding the allegations. Pascuzzi fails to identify any error to which a reasonable defense counsel would have objected, therefore Pascuzzi fails to show that his defense counsel's performance was deficient. Because Pascuzzi cannot show that his counsel's performance was deficient, his ineffective assistance of counsel claim fails.
To prevail on an ineffective assistance of counsel claim, Pascuzzi must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is deficient if it fell below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). Our scrutiny of counsel's performance is highly deferential; we strongly presume reasonableness. State v. McFarland, 127 Wn.2d 322, 335-36, 899 P.2d 1251 (1995). To rebut this presumption, a defendant bears the burden of establishing the absence of any conceivable legitimate tactic explaining counsel's performance. State v. Grier, 171 Wn.2d 17, 33, 246 P.3d 1260 (2011). "Where a claim of ineffective assistance of counsel rests on trial counsel's failure to object, a defendant must show that an objection would likely have been sustained." State v. Fortun-Cebada, 158 Wn. App. 158, 172, 241 P.3d 800 (2010) (citing State v. Saunders, 91 Wn. App. 575, 578, 958 P.2d 364 (1998)). To establish prejudice, a defendant must show a reasonable probability that the outcome of the trial would have differed absent thedeficient performance. State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987). If an ineffective assistance claim fails to support a finding of either deficiency or prejudice, it fails. Strickland, 466 U.S. at 697.
Block testified that immediately after K.K. and C.B. told her about the incident in the bathtub, she called Pascuzzi's house and spoke with Stangle. The State asked Block what she told Stangle over the phone. Block answered, 4 Report of Proceedings (RP) at 77. Pascuzzi argues that defense counsel should have objected to Block's testimony because it included inadmissible hearsay.
But State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (citing Strickland, 466 U.S. 668), review denied, 113 Wn.2d 1002 (1989). Here, Block's single statement was not central to the State's case. In addition, it is likely that defense counsel decided not to object to avoid drawing unnecessary attention to the statement. Defense counsel's decision not to object was a valid trial tactic and there are no egregious circumstances that would warrant holding that defense counsel's failure to object was deficient performance.
During K.K.'s testimony, the State asked if she told the police the truth about what happened when they interviewed her the night of the incident; K.K. answered yes. During C.B.'s testimony, the State asked if she told the police the truth on the night of the incident and if she was telling the truth in court; C.B. answered yes to both questions. The prosecutor's questions to K.K. and C.B. were not objectionable. It is improper for the State to offer an opinion about awitness's truthfulness or credibility, ask a witness to testify regarding another witness's credibility, or to suggest that additional evidence exists which would corroborate a witness's testimony. See State v. Copeland, 130 Wn.2d 244, 290, 922 P.2d 1304 (1996) (); State v. Hughes, 118 Wn. App. 713, 725-26, 77 P.3d 681 (2003) (), review denied, 151 Wn.2d 1039 (2004); United States v. Edwards, 154 F.3d 915, 921 (9th Cir. 1998) (). The State did not engage in any prohibited conduct when it asked the witnesses if they are telling the truth in their own statements and testimony. Therefore, defense counsel's performance was not deficient for failing to object to the State's questions.
Detective Bull testified that after the incident, she traded several messages with Pascuzzi, but ultimately, she never spoke to him regarding the allegations. Pascuzzi characterizes Bull's testimony as an improper comment on his right to remain silent. We disagree. "'[A] police witness may not comment on the silence of the defendant so as to infer guilt from a refusal to answer questions.'" State v. Embry, _ Wn. App. _, 287 P.3d 648, 666 (2012) (quoting State v. Lewis, 130 Wn.2d 700, 705, 927 P.2d 235 (1996)). The State must intend the remarks to be a comment on that right. Embry, 287 P.3d at 666. Here, the State elicited Bull's testimony to demonstrate that Pascuzzi was aware of the investigation at the time he left the State and went to Florida. See State v. Freeburg, 105 Wn. App. 492, 497, 20 P.3d 984 (2001). Because Bull's testimony was offered to show Pascuzzi's knowledge of the investigation, it was not an improper comment on the defendant's right to remain silent, defense counsel's performance was notdeficient for failing to...
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