State v. Stark
| Decision Date | 15 June 1987 |
| Docket Number | No. 17226-3-I,17226-3-I |
| Citation | 48 Wn.App. 245,738 P.2d 684 |
| Parties | STATE of Washington, Respondent, v. Wilbur Nelson STARK, a/k/a Will N. Stark, a/k/a Lester Omen Smith, a/k/a William N. Stark, a/k/a George Vernon Starks, Appellant. |
| Court | Washington Court of Appeals |
Max P. Harrison, Everett, Rita Griffeth, Mark Muenster, Appellate Defender, Seattle, for Wilbur N. Stark.
Seth Dawson, Snohomish County Pros. Atty., Everett, for the State.
Wilbur Nelson Stark appeals his conviction for one count of first degree statutory rape and one count of indecent liberties. He contends that the trial court erred in admitting certain out-of-court statements of the victims, in failing to require the jury to specify the act upon which it relied to convict on the statutory rape count, in refusing to appoint substitute counsel, and in running his sentences consecutively instead of concurrently with two previously imposed sentences for bail jumping. He also contends that he was denied the effective assistance of counsel.
Stark was charged by amended information with one count of first degree statutory rape and two counts of indecent liberties. He was also charged in the same amended information with one count of forgery and one count of forgery of a registration certificate. All but count 1, first degree statutory rape, and count 2, indecent liberties, were eventually dismissed.
Count 1 alleged that Stark engaged in sexual intercourse with S in violation of RCW 9A.44.070. S, who was 9 years old at the time of trial, testified as to three separate occasions on which she was sexually abused by Stark. On one of those occasions, she stated, Stark pulled down her panties and touched her vagina with his hand. Another time, he licked her vagina. On a third occasion, according to S, Stark put his penis in her vagina. Each of these incidents occurred at the home of S's baby-sitter, where Stark was a frequent visitor.
Count 2 alleged that Stark had sexual contact with J in violation of RCW 9A.44.100(1)(b). J, a 10-year-old friend of S, testified that Stark had rubbed her "private spot" on numerous occasions at the baby-sitter's home. On cross examination, J said that she had talked about these incidents with S before she told her mother about them.
In mid-July 1984, the baby-sitter told S's mother about a sexual incident involving S and the baby-sitter's 10-year-old son, D. After receiving this information, S's mother had a talk with S, during which S apparently disclosed that she had been sexually abused by Stark. After this conversation, on July 20, S was interviewed by a counselor to whom she apparently made the same disclosure. About a week later, at another interview, the counselor provided S's mother with a book on sexual abuse.
S's mother relayed the information she obtained from S to J's mother, who discussed it with J. Over defense objection, J's mother testified that when she asked J whether Stark had touched her any place he shouldn't touch her, J said yes. J's mother also testified, again over defense objection, that during the course of this conversation J did not repeat anything her mother described to her.
On April 4, 1985, Stark, who had failed to appear for trial, was found guilty in absentia on both counts 1 and 2. He was later apprehended and charged with two counts of bail jumping. On July 20, he pleaded guilty to the bail jumping charges. In return, the prosecutor agreed to move to dismiss the remaining three counts of the amended information.
On August 23, Stark informed the court that he wished to discharge his retained trial counsel, Max Harrison, and asked the court to appoint substitute counsel to represent him at post-trial motions and sentencing on counts 1 and 2. 1 Although he had not been present at trial, Stark indicated that he wished to make a motion "against Max Harrison as ineffective counsel" and that he did not believe that Harrison could properly argue such a motion. Harrison himself asked the court to allow him to withdraw. The court declined to allow Harrison to withdraw, refused to appoint substitute counsel, and informed Stark that any motions alleging ineffective assistance of counsel would have to be made pro se.
On October 4, Stark was given concurrent sentences of 151 days, time he had already served, for the two bail jumping convictions. Due to various post-trial motions, sentencing for the other two convictions was delayed until October 10. At that time, Stark was given concurrent sentences for the two sexual offense convictions, which were to run consecutively with the concurrent sentences for the two bail jumping convictions.
During cross examination, defense counsel elicited testimony from S regarding the book she received from her counselor. Defense counsel attempted to suggest that this event occurred before S reported that she had been sexually abused by Stark. To rebut the inference that S's story was based on something she read in a book, S's mother was allowed to testify that the incident S described to her in mid-July before she received the book was "about oral sex." The court cautioned the jury that this testimony was to be considered for no other purpose than to establish the sequence of events. Stark contends that this testimony was inadmissible hearsay; the State contends that it was admissible under ER 801(d)(1)(ii) 2 as a "prior consistent statement" of S.
In some circumstances, where a witness' testimony has been impugned by a suggestion of recent fabrication, a prior consistent statement by the witness may tend to rehabilitate her credibility, and may therefore be admissible. See State v. Harper, 35 Wash.App. 855, 857-58, 670 P.2d 296 (1983), review denied, 100 Wash.2d 1035 (1984). However, a prior consistent statement is not admissible merely to reinforce or bolster a witness' testimony, since repetition is not a valid test of veracity. State v. Purdom, 106 Wash.2d 745, 750, 725 P.2d 622 (1986). In order for a statement to be admissible under ER 801(d)(1)(ii) for the purpose of counteracting a suggestion of fabrication, the statement must have been made prior to the events which gave rise to the inference of fabrication. See Harper, 35 Wash.App. at 857-58, 670 P.2d 296.
S's out-of-court statement was offered to rebut defense counsel's implied charge that S's stories about sexual abuse were fabrications derived from things she read in the book given to her by her counselor. Since S's statement was consistent with her trial testimony and was made before she received the book, it is probative of her credibility and is therefore admissible under ER 801(d)(1)(ii).
J's mother testified, over defense objection, that J stated that Stark touched her in a place where he shouldn't touch her. Stark contends that this testimony was inadmissible hearsay; the State contends that it was admissible under ER 801(d)(1)(ii).
During cross examination by defense counsel, J testified that she had talked to S about Stark's sexual conduct before she talked to her mother. The State argues that this was an implied charge of fabrication which J's out-of-court statement to her mother was offered to rebut. See ER 801(d)(1)(ii). However, J's statement to her mother was made after her conversation with S, so the statement can be of no value in repairing any damage to J's credibility. Consequently, it does not fall within ER 801(d)(1)(ii) and its admission was error. See Purdom 106 Wash.2d at 750, 725 P.2d 677. Harper, 35 Wash.App. at 857-58, 670 P.2d 296.
Nevertheless, the error was harmless. Just before J's mother testified, J herself testified that Stark had rubbed her "private spot" and that, when questioned, she had told her mother of this. Thus, the jury would have been aware of J's statement to her mother even without the latter's testimony as to that statement. Under these circumstances, we are convinced that the admission of the statement through J's mother's testimony could not, within reasonable probabilities, have materially affected the outcome of the trial. See State v. Ellison, 36 Wash.App. 564, 569-70, 676 P.2d 531, review denied, 101 Wash.2d 1010 (1984). 3
In her trial testimony, S described three separate instances of sexual abuse. Two of these, if true, would constitute "sexual intercourse" within the meaning of RCW 9A.44.010(1); one would not. The jurors were instructed that in order to convict Stark of statutory rape, they would have to agree that he engaged in an act of sexual intercourse with S. They were not instructed, however, that they must specify, presumably by an answer to a special interrogatory, the act upon which they agreed. Stark contends that because we cannot know which of the three acts the jury relied on, we cannot be sure that it did not rely on the one act which would be insufficient to support a conviction for statutory rape. He concludes that the verdict is therefore defective, and that his conviction must be reversed. 4
The argument has one very basic flaw. The jurors were instructed as to the definition of "sexual intercourse," and they were also instructed that in order to convict they must unanimously agree that the same act of sexual intercourse had been proved beyond a reasonable doubt. Thus, assuming, as we must, that these instructions were followed, see State v. Corwin, 32 Wash.App. 493, 495, 649 P.2d 119, review denied, 98 Wash.2d 1004 (1982), the jury could not have relied on the one act of the three that would not come within the definition of "sexual intercourse."
The cases relied on by Stark are inapposite. In State v. Petrich, 101 Wash.2d 566, 683 P.2d 173 (1984), the court held that in a case where the evidence indicates that several distinct criminal acts have been committed, but the defendant is charged with only one count of criminal conduct, a unanimous verdict will be assured if...
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