State v. Quigg

• Decision Date: 03 February 1994
• Docket Number: Nos. 12386-3-II,12387-1-III,s. 12386-3-II
• Parties: STATE of Washington Respondent, v. Stephen Clyde QUIGG, a/k/a Steven Gruitt, Appellant.
• Court: Washington Court of Appeals

Page 828

72 Wn.App. 828

866 P.2d 655

STATE of Washington Respondent, v. Stephen Clyde QUIGG, a/k/a Steven Gruitt, Appellant.

Nos. 12386-3-III, 12387-1-III.

Court of Appeals of Washington,

Division 3.

Feb. 3, 1994.

Stephen Clyde Quigg, pro se, and Paul J. Wasson, Spokane, for appellant

Jeffrey C. Sullivan, Pros. Atty., and Bruce Hanify, Deputy Pros. Atty., Yakima, for respondent.

HAROLD D. CLARKE, Judge Pro Tem. ^*

Stephen Clyde Quigg appeals his jury convictions on two counts each of first degree rape of a child and first degree child molestation, contending the trial court erred in admitting certain evidence. He also appeals his 550-month exceptional sentence, contending the court's reasons were unsupported by the record. Pro se, he reargues the facts, claims ineffective assistance of counsel, and claims the prosecutor, judge, jury and police were prejudiced against him. We affirm.

FACTS

Mr. Quigg was accused of raping his "daughter" S.Q. and beating his "nephew" B.O. on the penis. Although not Mr. Quigg's biological daughter, S.Q. was the daughter of Peggy, a woman whom Mr. Quigg had been divorced from since 1984. S.Q. was born in 1983. Mr. Quigg and Peggy remained good friends after their divorce; in fact, they admitted that their relationship was probably better since then. Peggy continued to do Mr. Quigg's laundry for him. Mr. Quigg went over to Peggy's house almost every day for several hours, then he and Peggy's new husband, Don, went to work the evening shift together at a fruit packing company.

When Mr. Quigg came over to Peggy's, he always played with S.Q. He took her out to the park, out to dinner, and bought her anything she wanted. He was frequently alone with her. He referred to her as his "baby doll"; she referred to him as her "Steve daddy". Mr. Quigg was essentially like family in Peggy's house, and he was with Peggy at the Peggy had a sister named Glenda. Glenda knew Mr. Quigg, but she tried to avoid him because, in 1981, she reported to the police that Mr. Quigg had raped her. Mr. Quigg was charged for raping Glenda, but he entered into a deferred prosecution arrangement and was never convicted. Mr. Quigg claimed the charges were false, and Glenda made the report because she was having an affair with him that went sour.

                hospital when S.Q. was born.   Peggy considered him like a father to S.Q.--perhaps more so than Don
                

Glenda had a son, B.O., born in 1981. When B.O. was 7 years old, she occasionally dropped him off at Peggy's house after school, then she and Peggy would go out for coffee or run errands. She knew that Mr. Quigg was occasionally at Peggy's, but she usually did not see him because he was in the bedroom or out with S.Q.

In January 1988, Glenda's family moved to Illinois. After the move, B.O. told Glenda he had been sexually abused by Mr. Quigg. B.O. described three incidents at his Aunt Peggy's house, during which Mr. Quigg held a gun to his head and forced him to take off his clothes. Mr. Quigg then repeatedly hit B.O.'s penis with a leather belt, while squeezing his own penis. B.O. said that Mr. Quigg pointed a gun at his head on each occasion and told him, "If you tell, I'm going to blow your head off." Glenda remembered the bruises; at the time, B.O. explained them by saying he dropped the toilet seat on himself. In March 1991, the State filed two counts of first degree child molestation against Mr. Quigg based on acts against B.O.

In June 1991, Peggy asked S.Q. (then 7 years old) if Mr. Quigg had ever touched her. Peggy began asking these questions because S.Q. had experienced bed-wetting and multiple bladder infections, and Peggy had received information that Mr. Quigg may have molested her. S.Q. first denied any bad touching by Mr. Quigg, but then showed her mother, using a teddy bear, where Mr. Quigg allegedly touched her.

The police took S.Q. to Robyn Cyr and investigator Bill Nance of the Yakima County Prosecuting Attorney's Office.

                Ms. Cyr and Mr. Nance interviewed S.Q. three times.   During each interview, S.Q. explained or demonstrated different ways in which Mr. Quigg had touched her.   These included kissing her on the mouth, lying on top of her, fondling her genitals, and putting his finger in her vagina.   She also described how he masturbated in front of her.   In August 1991, two counts of first degree rape of a child, based on acts against S.Q., were added to the child molestation charges.   On defense counsel's motion, all four counts were consolidated for trial
                

In December 1991, a jury trial was held. Prior to trial, the court granted in part and denied in part Mr. Quigg's motion to suppress pornographic magazines, videos, and writings seized pursuant to two search warrants. However, the court ultimately ruled all but a handful of these documents inadmissible. One piece of evidence admitted at trial was exhibit 3A, a story handwritten by Mr. Quigg, entitled "The Girl Who Wanted To Be, Just Like, Mommy." The story described in detail some of the same acts he allegedly performed on S.Q. The court also held a reliability hearing to determine the admissibility of certain child hearsay statements under RCW 9A.44.120. The court found most of the hearsay statements reliable. Ms. Cyr testified at trial about grooming, a process by which child molesters gradually introduce their victims to more and more explicit sexual conduct. The jury found Mr. Quigg guilty on all four counts.

In April 1992, after Mr. Quigg had been evaluated by a psychologist for amenability to treatment, the trial court imposed sentence. As to each of the child molestation counts, the standard range was 67 to 89 months. Mr. Quigg was sentenced to 75 months for one count and 150 months for the other. As to each of the child rape counts, the standard range was 98 to 130 months. Mr. Quigg was sentenced to 130 months for one count and 195 months for the other. The court then ran the sentences on each count consecutively, for a total sentence of 550 months. Mr. Quigg timely appealed.

ADMISSION OF CHILD HEARSAY STATEMENTS

Mr. Quigg first argues that the trial court committed two errors in admitting evidence pursuant to the child hearsay statute, RCW 9A.44.120: (1) it admitted hearsay evidence beyond the scope of the statute, since admission of child hearsay is limited to the actual description of the alleged sexual contact; and (2) it made an inadequate record for admitting these statements, thus violating the standards of State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984).

We decline to consider the first alleged error, that the court admitted hearsay evidence beyond the scope of the child hearsay statute. Four witnesses--Peggy, S.Q.'s sister-in-law, S.Q.'s neighbor, and Ms. Cyr--testified to statements they heard S.Q. make. A thorough review of the record indicates Mr. Quigg did not object at trial to any of these witnesses' testimony on the ground that it went beyond the scope of the statute. Thus, this issue is raised first on appeal.

Generally, appellate courts will not consider an issue raised for the first time on appeal unless it rises to the level of a manifest error affecting a constitutional right. State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988); State v. McCullough, 56 Wash.App. 655, 657, 784 P.2d 566, review denied, 114 Wash.2d 1025, 793 P.2d 976 (1990); RAP 2.5(a). The proper way to approach errors raised for the first time on appeal is, first, to determine whether the error is truly of constitutional magnitude; if the error fails this test, the court will refuse review. Scott, 110 Wash.2d at 688, 757 P.2d 492.

If both the child hearsay declarant and the hearsay recipients testify at trial and are subject to full cross examination, no issue of truly constitutional magnitude is involved. State v. Leavitt, 111 Wash.2d 66, 71, 758 P.2d 982 (1988); State v. Stevens, 58 Wash.App. 478, 486, 794 P.2d 38, review denied, 115 Wash.2d 1025, 802 P.2d 128 (1990); State v. Warren, 55 Wash.App. 645, 650, 779 P.2d 1159 (1989), review denied, 114 Wash.2d 1004, 788 P.2d 1078 (1990). In this case, both prongs of the test are met. The child hearsay declarant, S.Q., testified at trial and was in fact fully cross-examined. Likewise, the four challenged witnesses testified The second alleged error regarding the hearsay statements is that the court made a woefully inadequate record for admitting them, ignoring the factors set forth in State v. Ryan, supra. A trial court's ruling on the admission of evidence may be reversed only upon a showing of manifest abuse of discretion. State v. Markle, 118 Wash.2d 424, 438, 823 P.2d 1101 (1992). We conclude that no manifest abuse of discretion has been shown.

                and were fully cross-examined.   Thus, this alleged error will not be considered on appeal
                

The record clearly demonstrates that the court considered the Ryan criteria and made an adequate record of doing so when it admitted the challenged statements. The Ryan criteria include the five State v. Parris, 98 Wash.2d 140, 654 P.2d 77 (1982) factors:

"(1) whether there is an apparent motive to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; and (5) the timing of the declaration and the relationship between the declarant and the witness. ¹ "

as well as the four Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 factors:

(1) the statement contains no express assertion about past fact, (2) cross examination could not show the declarant's lack of knowledge, (3) the possibility of the declarant's faulty recollection is remote, and (4) the circumstances surrounding the statement (in that case spontaneous and against interest) are such that there is no reason to suppose the declarant misrepresented defendant's involvement. ²

The court carefully weighed these factors on the record, expressly finding that five of the nine favored the reliability of the challenged hearsay...