State v. Teters
| Decision Date | 20 February 2019 |
| Docket Number | 49357-8-II |
| Citation | 7 Wn.App.2d 1047 |
| Parties | STATE OF WASHINGTON, Respondent, v. PAUL L. TETERS, Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Paul Teters appeals from convictions of one count of attempted second degree child rape and one count of second degree child molestation.
He argues that (1) the trial court abused its discretion by allowing the prosecution to amend the information after trial began, (2) his convictions of attempted rape and child molestation violate double jeopardy, (3) the prosecutor committed misconduct, (4) the trial court violated his right to present a defense by refusing to disclose the victim's therapy records, (5) the trial court improperly imposed conditions of community custody, and (6) he received ineffective assistance of counsel.
We affirm Teters' conviction of attempted second degree child rape, vacate his conviction of second degree child molestation on double jeopardy grounds, and remand for the trial court to resentence Teters on his conviction of attempted second degree child rape and to revise his conditions of community custody consistently with this opinion.
In 2014, HL, [1] a 12 year old girl, attended a Fourth of July party at the home of a relative of her mother's boyfriend, Patrick Teters. There were about 100 people at the party with a lot of activities. HL spent most of the day hanging out with the other children, but some of the time she was with Patrick Teters' brother, Paul Teters (the defendant, whom we refer to as Teters).
HL described several incidents throughout the day with Teters that made her feel uncomfortable. In one, HL testified that she rode on the back of Teters' all-terrain vehicle and was uncomfortable when he drove fast and told her to hold on tighter. At another time, HL was downstairs in the house charging her phone when Teters entered the room and playfully took her phone and tried to look through her pictures. HL thought that during this time, Teters was pushing her with his hand on the zipper of her pants, which seemed to be "really inappropriate," but she also admitted that she thought at the time it might have been an accident. Verbatim Report of Proceedings (VRP) (Vol. III) at 345.
HL said that at another time that day, Teters asked her to show him her routine from her dance team. She did and it included a move that showed her underwear, about which Teters made some comments as to how it was "adult underwear" and not "appropriate" of her to be "wearing scandalous things." VRP (Vol. III) at 348. At another time, Teters offered to help HL do some pull-ups; she testified that he kept "grabbing [her] right there," putting his hand on her buttocks and in between her legs helping her do the pull-ups. VRP (Vol. III) at 346-47. HL said she wanted it to stop, but did not say anything about these incidents and did not believe someone would try to do something like that.
After watching the fireworks, HL went into a room with some other kids to watch television. HL was going to sleep on the bed in the room while her mother and Patrick were sleeping on the floor. Teters came in and started watching the movie, sitting on the edge of the bed; HL was under the blanket and he was by her feet. Sometime after Teters sat down next to her, HL fell asleep. At some point, HL said that she woke up when she felt someone's hand in her pants, "trying to move his hands around." VRP (Vol. III) at 359.[2] She said that when she woke up, Teters' hand was inside her underwear touching her vagina, "moving around" and "trying to feel [her]." VRP (Vol. III) at 360. HL said he "tried to go inside" but she kept moving away. VRP (Vol. III) at 360-61. When asked if his finger ever went inside, she responded, "I felt that it did, but I just moved away." VRP (Vol. III) at 361.
HL explained that she did not yell or wake her mom because she did not want to cause a scene. She said that she told Teters to stop, leave the room and go to bed, but he did not respond. HL said that after she became louder and pushed him away more, he pretended like he just woke up, mumbled an apology about having fallen asleep, and walked out of the room.
HL's mother woke up and started comforting her and asking her what happened. HL started crying and told her mother that Teters was trying to touch her, but was not specific about where or how she had been touched. HL later gave inconsistent accounts in an interview with defense counsel and, in her testimony at trial as to whether Teters ever penetrated her vagina, she admitted that she was "confused on what happened." VRP (Vol. III) at 385-87. HL's mother testified that she saw Teters lying next to HL, but could not see his hands or determine for sure whether he was touching HL.
HL's mother called the police, telling them that she thought Teters had been touching her daughter "on her vagina." VRP (Vol. IV) at 485. The police arrived in the early morning, and a detective "bagged"[3] Teters' hands to preserve possible DNA (deoxyribonucleic acid) evidence soon after his arrival at the house around 2:30 a.m. VRP (Vol. IV) at 494-95. Teters was in an agitated state when the police woke him up, which he explained was due to PTSD (post-traumatic stress disorder). The detective did not obtain swabs from HL's genital area, nor were such swabs obtained at a forensic interview about three weeks later.
Dr Erin Meadows conducted the examination of HL on July 5, 2014. Meadows asked HL what happened, and HL said someone had touched her and "put his hands into her pants and felt her genitalia with his fingers." VRP (Vol. V) at 671. Meadows indicated in her chart that the concern was for sexual assault and that HL did not complain of any pain but "had included a foreign body penetration." VRP (Vol. V) at 671.
At trial, Wendy Kashiwabara, who had previously worked at the state forensic lab, described how DNA can be transferred either by direct physical contact or "secondary" contact; for example, from two people touching the same item. VRP (Vol. IV) at 556-57. She noted that the DNA would be the same in each situation but that there would be a higher likelihood of DNA transfer if there was a bodily fluid involved. A swab of Teters' left finger revealed DNA consistent with both Teters and HL.
Teters' jury trial was held on May 16, 2016. Just before trial began the State filed an amended information charging two counts in the alternative: count 1, second degree child rape, and count 2, second degree child molestation. After the testimony of several witnesses, including HL, the State moved to amend the information again to charge three separate counts: one count of second degree child rape, one count of attempted second degree child rape, and one count of second degree child molestation. Defense counsel objected, but the trial court accepted the second amended information. Defense counsel expressed concern about the potential for three convictions for one incident, but the State and trial court assured him that the matter would be resolved at sentencing because the potential convictions would be treated as the same criminal conduct.
Teters testified on his own behalf and denied touching HL inappropriately. He specifically denied ever reaching under the covers, touching HL's vagina, or trying to molest her or engage in any intentional sexual conduct.
Prior to the incident, HL was diagnosed with an anxiety disorder. HL testified that although she would get a little "antsy" or "nervous," it had never caused her to think something happened that had not. She stated that she never had "super vivid nightmares," nor had she ever been unable to distinguish between a nightmare and something that actually happened. HL said that her anxiety had previously caused her to cry, and her mother testified that sometimes HL would express her anxiety by crying.
Teters moved to disclose HL's confidential therapy and mental hospital records, but the trial court denied the motion. The trial court conducted an in camera review of the records ruling that they did not contain any "discoverable relevant evidence to support a violation of the privileges contained in the documents." Clerk's Papers (CP) at 189-90.
Teters presented considerable evidence of his PTSD. During her closing argument, the prosecutor suggested that Teters relied heavily on evidence of his PTSD and war service history to "distract" the jury from "the real issue": whether he touched HL. VRP (Vol. VII) at 905. Teters objected to this comment but was overruled.
The prosecutor also asked the jurors to ask themselves why HL would "make this up" and what she would have to gain from making it up. VRP (Vol. VII) at 892-94. The prosecutor also stated several times that HL had told the jury what had happened to her. She later stated that the victim was interviewed prior to trial by the defense attorney and that she came to court to testify, even though it was difficult for her. At one point, after discussing the elements of the charged crimes, the prosecutor stated that the State did not have to prove why Teters committed those crimes. Teters did not object to any of these statements or request any curative instructions, and the trial court later instructed the jury that attorneys' remarks are not evidence.
The jury could not reach a verdict on the second degree child rape charge, but found Teters guilty of attempted second degree child rape and second degree child molestation. At sentencing, the trial court imposed standard range sentences on both counts, including an indeterminate sentence.
The trial court also imposed several community custody conditions on Teters. These included conditions (1) prohibiting him from entering into or frequenting business...
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