State v. Volk
| Decision Date | 04 February 2014 |
| Docket Number | No. 30707-7-III,30707-7-III |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CASMER JOSEPH VOLK, Appellant. |
BROWN, J. — Casmer Joseph Volk appeals his conviction and exceptional sentence for first degree child rape, contending:
In a statement of additional grounds for review (SAG), Mr. Volk expresses his concerns regarding evidence sufficiency, his trial attorney's effectiveness, the child's competence to testify, and the conduct of the forensic interviews.
We disagree with Mr. Volk on all issues except those regarding certain community custody conditions relating to pornography and alcohol. Therefore, we affirm in part, reverse in part, and remand for the limited purpose of correcting Mr. Volk's judgment and sentence as specified below.
On April 28, 2011, Travis and Selena Hamblin left their four-and-one-half-year-old son, L.H., in the care of their friend and daycare provider, Diedre Cleary, while they vacationed in Oregon. Ms. Cleary lived in Ellensburg with her boyfriend, Mr. Volk, who in North Dakota had twice previously been convicted of surreptitious intrusion, a sex crime. On April 30, 2011, Ms. Cleary took L.H. to the local hospital where a physician prescribed him an antibiotic to treat his recurring ear infection. L.H. soon had diarrhea, a common side effect of the antiobiotic. Rectal bleeding and anal irritation sometimes accompany severe diarrhea.
On May 1, 2011, Mr. Volk was alone with L.H. for about two hours. Then, the Hamblins returned from their vacation. Mr. Volk and Ms. Cleary brought L.H. home, where Mr. Hamblin had him take a shower and go to bed. The next morning, L.H. cried to Ms. Hamblin about his buttocks, saying, "my butt hurts." Report of Proceedings1 (RP) at 124, 135. She thought he had a diaper rash. Upon inspection, she saw his anus was reddened and inflamed. Still thinking he had a diaper rash, she applied petroleum jelly to his anus. He strongly protested as she did so. When she asked him, L.H. answered, "Cas hurt me." RP at 138. Then, when Ms. Hamblin asked him, "how did [Mr. Volk] hurt you?" L.H. answered, "He put macaroni, lots of cream up my butt and his pee pee in my butt." Id.
Lacking a vehicle and expecting Mr. Volk's return to deliver a car seat, Ms. Hamblin decided to wait before taking action, so as to avoid erratically confronting Mr. Volk with a scurrilous accusation. L.H. stood near the door upon Mr. Volk's arrival with the car seat. When Ms. Hamblin walked around a comer, L.H. said "you hurt me" to Mr. Volk. RP at 142, 608. After Mr. Volk left, Ms. Hamblin arranged transportation for herself and L.H. to the hospital.
Registered Nurse and Sexual Assault Nursing Examiner Megan Day met L.H. and Ms. Hamblin in an examination room where a victim's advocate joined them. When Ms. Day said, "Hi, how are you doing today?," L.H. replied, RP at 174. L.H. repeated this statement several times in response to Ms. Day's open-ended questions. Upon inspection, she saw blood in his underwear and around his scrotum. She saw redness around his anus and noted it was tender. With the assistance of a physician, Ms. Day inserted an anus scope into L.H.'s rectum, performed swabs, and inspected the tissue, but could not find the source of bleeding. The absence of an acute injury was not unusual because rectal injuries often begin healing within 24 hours and complete healing quickly, especially among children. L.H. whimpered and cried in pain during this procedure. When Ms. Day asked him to identify which face on a chart represented his pain level, L.H. immediately pointed totwo faces indicating pain at or near the most excruciating level possible. He then grabbed his buttocks and cried.
Kittitas County Sheriffs Detective Darren Higashiyama visited the examination room with a police officer, knelt on one knee beside L.H., and introduced himself. Without prompting, L.H. said, "I have something to tell you." RP at 344. When Detective Higashiyama asked him, "well, what is that?" L.H. answered, "Cas put macaroni, lots of cream, and his pee pee in my butt." Id.
On May 4, 2011, Ellensburg Police Detective Sergeant Brett Koss interviewed L.H. at the police station with the assistance of a social worker and victim's advocate. Ms. Hamblin joined them later in the interview to help calm L.H. While L.H. contradicted himself at times, he mostly reiterated his prior statements in response to open-ended questions. For example, when Detective Sergeant Koss asked him, "So, can you tell me what happened that made your butt hurt?," L.H. answered, "Cas . . . put his pee pee in my butt." Ex. 8, at 2:11:20-:11:42 p.m., May 4, 2011; see RP at 244. However, in moments of apparent confusion or coyness, L.H. later equivocated on whether he was telling the truth or a lie.
On May 11, 2011, Child Sexual Assault Forensic Interviewer Lisa Larrabee interviewed L.H. in the presence of Ms. Hamblin. Again, L.H. reiterated his prior statements in response to open-ended questions. For example, when Ms. Larrabee said, "Now I want to talk to you about why you came to talk to me today," L.H. replied, Ex. 24, at 2:40:42-:41:19, :44:59-:45:08 p.m., May 11, 2011; see RP at 425. Then, L.H. clearly and coherently divulged additional details. For example, when Ms. Larrabee asked him, "What did it feel like when [Mr. Volk] put his pee pee in your butt?," L.H. answered, Ex. 24, at 2:47:10-:47:37 p.m., May 11, 2011. Soon, when Ms. Larrabee asked him, "And, and what was [Mr. Volk] doing with his feet and legs when his pee pee was in your butt?," L.H. answered, "He was going like this," and demonstrated by gyrating his hips in a circular movement. Ex. 24, at 2:48:35-:48:49 p.m., May 11, 2011; see RP at 417-18. L.H. explained further, ; "I was in . . . a bed"; and Ms. Cleary walked in the room, saying "Get off of [L.H.]!" Ex. 24, at 2:48:49-:49:07, :51:14-:51:20, :53:40-:54:05, 3:12:00-: 12:10 p.m., May 11, 2011; see RP at 423, 429.
The State charged Mr. Volk with first degree child rape. Additionally, the State alleged as an aggravating circumstance that when Mr. Volk committed the crime, he knew or should have known L.H. was particularly vulnerable or incapable of resistance. After holding a competency hearing, the trial court ruled L.H. was not competent to testify. A mistrial ensued because the jury could not reach a unanimous verdict. After holding another competency hearing, the court ruled L.H. was now competent to testify. On retrial, the State elicited the following testimony from L.H.:
RP at 42. Additionally, the court admitted hearsay repetition of L.H.'s out-of-court statements without holding the reliability hearing required by RCW 9A.44.120(1). Mr. Volk never objected on this ground and never requested this hearing. The jury found him guilty as charged and, by special interrogatory, found an aggravating circumstance based on L.H.'s particular vulnerability.
The sentencing court concluded this aggravating circumstance was a substantial and compelling reason for imposing an exceptional sentence. Accordingly, the court sentenced Mr. Volk to a total of 28 years' imprisonment, 10 years above the standard range. The court then ordered him to comply with community custody conditions relating to pornography and alcohol:
Clerk's Papers (CP) at 194-95. Mr. Volk appealed.
The issue is whether the trial court reversibly erred in admitting hearsay repetition of L.H.'s out-of-court statements without holding the reliability hearing required by RCW 9A.44. 120(1). We review evidence admission under RCW 9A.44. 120(1) for abuse of discretion.2 State v. Swann, 114 Wn.2d 613, 665, 790 P.2d 610 (1990). The statute partly provides;
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