State v. Vinsonhaler
| Decision Date | 11 August 2009 |
| Docket Number | 36275-9-II,36235-0-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. KYLE SCOTT VINSONHALER, Appellant. STATE OF WASHINGTON, Respondent, v. KLINTON JAMES VINSONHALER, Appellant. |
UNPUBLISHED OPINION
A single jury found brothers Kyle Scott Vinsonhaler and Klinton James Vinsonhaler guilty of first degree child molestation for the digital penetration (Kyle)[1] and external touching (Klinton) of C.T., a seven-year-old girl. In separate appeals, which we consolidated for review, Kyle argues that he is entitled to a new trial because (1) the State improperly admitted Klinton's unredacted statement implicating Kyle in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968); (2) the trial court erred when it permitted Dr. John Stirling to testify under the child hearsay statute; and (3) his trial counsel's assistance was constitutionally deficient.[2] Klinton argues that his counsel's assistance was constitutionally deficient because his attorney failed to move to sever his case from Kyle's properly impeach C.T., and object to the prosecutor's mischaracterization of the evidence during closing argument. Klinton also argues that sufficient evidence does not support his conviction. Kyle's Conviction
In Bruton, the Supreme Court held that, despite clear concise, and understandable instructions, the admission of a defendant's confession implicating his co-defendant at a joint trial was prejudicial error. To comply with Bruton, our Supreme Court adopted CrR 4.4(c), which requires separate trials unless the defendant's confession is redacted to exclude references implicating the co-defendant. Here, Klinton's statement to Vancouver Police Detective Steven Norton was not a confession implicating himself as well as Kyle and, as a result, was not an issue properly resolved under a Bruton analysis. Accordingly, although the parties and the trial court improperly applied the Bruton analysis to this case and Bruton does not apply nonetheless the trial court did not err when it refused to sever the case for trial. We affirm Kyle's first degree child molestation conviction.
Because the trial court properly denied Kyle's counsel's motion to sever, Klinton's claim that his trial counsel was ineffective for failing to move to sever his trial from Kyle's likewise fails. Moreover, because cross-examination is a matter of trial strategy, Kyle's claim that his counsel was ineffective for failing to subject the seven-year-old victim to more rigorous cross-examination also fails. We affirm Klinton's first degree child molestation conviction.
During the summer of 2005, C.T. and A.T. visited their grandmother in Vancouver, Washington. C.T. and A.T. were seven and nine years old at the time of their visit, respectively. According to their grandmother, on a particularly hot summer day, C.T and A.T. asked for her permission to go on a bike ride with two older boys, Kyle and Klinton, as well as LaRay, an eight-or nine-year-old boy from the neighborhood. At the time, Kyle was 19 and Klinton was 17. Klinton lived with his parents in the same apartment complex as C.T. and A.T.'s grandmother; Kyle lived elsewhere, but visited his parents frequently. After talking to Kyle and Klinton about various safety issues, including where they were going and what time they must return, C.T. and A.T.'s grandmother gave them permission to go on the bike ride.
Shortly after the agreed upon time, Kyle, Klinton, C.T., A.T., and LaRay returned from the bike ride and went inside C.T. and A.T.'s grandmother's home. While inside, C.T. asked her grandmother to peel an apple for her; when her grandmother suggested that C.T. have either Klinton or Kyle do it for her, C.T. threw the apple down and "stormed" out of the room. 2 Report of Proceedings (RP) at 99. C.T.'s grandmother peeled the apple and gave it to her. C.T.'s mother picked her up the same day and C.T. returned home.
From September 2005 until approximately March 2006, Angela Owens was the day-care provider for C.T., A.T., and their younger sister, M.S. In February 2006, several of the children in the day care began discussing "good touch" and "bad touch." When Owens heard the children talking about "good touch" and "bad touch," she sat the children down and talked to them about the difference between "good touch" and "bad touch" in very general terms. Specifically, Owens told the children that "inappropriate touches is anything that makes them feel uncomfortable and that they don't want done." 1 RP at 34. As a result of this discussion, one of the children talked about an incident that happened on her school bus, where the bus driver had been kissing the girls on the cheek and hugging them. Shortly thereafter, C.T. told Owens that she wanted to tell her something. Owens walked over to C.T. and C.T. told her very quietly that the previous summer she and her brother went on a bike ride and, during the bike ride, C.T. had to go to the bathroom. C.T. told Owens that after she went to the bathroom, one of the older boys, Kyle, asked her, "can I feel if you are dry," and when C.T. acquiesced, he "put his finger in her [vagina]." 1 RP at 68. C.T. then told Owens that, after the bathroom break, they went back to her grandmother's house and she asked the same boy to peel an apple for her and he said, "only if you let me touch you," and C.T. said, "no, I'll have my grandma do it." 1 RP at 36. C.T. only described the older boy, Kyle, touching her. Owens asked if C.T. had told her mother and C.T. stated that she had not because she was afraid her mother would slap her.
When C.T.'s mother arrived to pick up her children, Owens told her what C.T. had revealed to her earlier. C.T.'s mother then sat down with C.T. and asked her about what she had told Owens. C.T. revealed to her mother that, during a bike ride with her brother and two older boys at her grandmother's house the previous summer, she had stopped to go to the bathroom in the bushes. C.T. further revealed that as she was pulling up her pants, the older boy, Kyle, asked if he could "see if [she was] dry," or "are you dry," and he "put his . . . hand between her legs and his finger in her vagina"; when she said "ow," he pulled his hand back. 2 RP at 132. C.T. told her mother that she did not think anyone else saw what happened. C.T. also told her mother that, after she returned to her grandmother's house, she asked the same boy to peel an apple for her and he said, "let me touch you and I'll do it," but she refused and said, "never mind, I'll ask my grandma," and she took the apple back. 2 RP at 133. After talking to C.T., her mother called the police.
Shortly after C.T.'s mother filed the police report, Detective Norton from the Child Abuse Intervention Center contacted her and C.T. to investigate the allegations of sexual abuse. On March 8, 2006, C.T. repeated the statements that she had made to her mother and Owens about the molestation and the apple incident. But she added that, after Kyle put his finger inside her vagina, Klinton walked up to her and "touched the outside of her private part." 2 RP at 283. C.T. told Norton that the brothers witnessed each other touching her. When Norton asked C.T. why she had not shared the information about Klinton previously, she stated it was because Kyle "did the worse stuff to her." 2 RP at 286.
Detective Norton also interviewed Kyle and Klinton. Norton advised both brothers of their Miranda[3] rights, which they stated they understood and chose to waive. Kyle and Klinton admitted going on the bike ride with C.T., A.T., and LaRay, and recalled stopping to go to the bathroom. Kyle admitted that he stood near C.T. while she went to the bathroom but did not watch because he knew it was inappropriate; Klinton stated that he was not near C.T. when she went to the bathroom. Both brothers denied ever touching C.T. or asking to touch C.T. According to Norton, Klinton stated that Kyle went with C.T. when she went to the bathroom and that, when the two of them walked back up the path, C.T. acted differently and did not want to be near Kyle.
Approximately one month after the interview with Detective Norton, C.T.'s mother took her to see Dr. Stirling for a physical examination. Stirling had previously been C.T.'s mother's pediatrician and had treated C.T. when she was an infant. Following her physical examination, C.T. told Stirling that Kyle "[w]ent to check to see if I was dry, and he went up too far and it hurt" and that, on the ride, he kept asking if he could touch her genitals again. 2 RP at 240. According to Stirling, his physical examination of C.T. did not uncover any signs that she either was or was not abused but, given her type of allegation and the time that had elapsed, he would not expect to find any signs of trauma.
On March 30, 2006, the State charged Kyle and Klinton as co-defendants. The State charged Kyle with one count of first degree child rape, one count of first degree child molestation, and one count of attempted first degree child molestation. The State charged Klinton with one count of first degree child molestation. Later, the State amended the information to charge the first two counts against Kyle in the alternative.
Citing Bruton, Kyle sought to have his trial severed from Klinton's trial, arguing that Klinton had made several statements against Kyle's interests that were admissible in Klinton's trial but should not be admissible in Kyle's trial. Klinton's trial counsel did not seek to join in the motion to sever. After the State agreed not to elicit testimony about the statements in its case-in-chief the trial court...
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