State v. Warren

• Decision Date: 02 October 1989
• Docket Number: No. 21633-3-1,21633-3-1
• Citation: 779 P.2d 1159,55 Wn.App. 645
• Parties: STATE of Washington, Respondent, v. Robert D. WARREN, Appellant.
• Court: Washington Court of Appeals

Page 645

55 Wn.App. 645

779 P.2d 1159

STATE of Washington, Respondent, v. Robert D. WARREN, Appellant.

No. 21633-3-1.

Court of Appeals of Washington Division 1.

Oct. 2, 1989.

Reconsideration Denied Nov. 7, 1989.

Tom P. Conom, Edmonds, for appellant.

S. Aaron Fine, Snohomish County Prosecutors Office, for respondent.

SWANSON, Judge.

Robert D. Warren appeals from the judgment and sentence entered following his convictions for attempted first degree statutory rape and attempted second degree rape. We affirm.

Warren was charged by information filed August 3, 1987, with attempted second degree rape (Count I) and first degree statutory rape (Count II). The allegations involved "B," age 13, and "C," age 9, the daughters of Mona C., Warren's long-time acquaintance. At trial, Mona characterized Warren, who lived nearby, as a "best friend," who had been "like a dad" to her three daughters. Mona's daughters regularly visited Warren, who would pay them to do chores around his house.

Mona stated that she was home at about 12:30 a.m. on May 31, 1987, when B, who had spent the afternoon and evening with Warren, came through the door. Mona described B as "gasping for breath ... scared ... crying." At first, B was unable to tell Mona what was wrong. Finally, B said that "Bob took my pants down." B explained that she had managed to fight her way free and run home. Mona's fiance and brother were both present when B arrived home and essentially corroborated Mona's account.

B testified that she had been at Warren's house on the afternoon of May 30 to stack wood and cut weeds. Later, Billie Ingersoll, Warren's girlfriend, arrived and the three went out for dinner. B stated that she and Warren sat in the rear seat of the car while Ingersoll drove home from the restaurant. During the ride, Warren repeatedly placed his hand on B's knee.

Upon returning to Warren's house, the three had dessert while B watched a movie. Ingersoll left sometime around midnight. Shortly thereafter, B asked Warren for a ride home. According to B, Warren, who was wearing pants but no shirt, wrapped his arms around her and pulled her to the floor. During the ensuing struggle, Warren pulled down B's pants and underwear. B managed to break free, pull up her pants, and run out the door. She hid in the bushes while Warren came outside looking for her and then ran home. B denied arguing with Warren about payment for her work.

After B related what happened to her, Mona called the police. Det. James Scharf interviewed B and then drove to Warren's house, where he arrived at about 2:00 to 3:00 a.m. Scharf observed Warren sleeping on the couch, wearing pants, but no shirt. According to Scharf, Warren denied having had any problems with B during the course of the evening.

Mona testified that on the day after the incident involving B, she told her daughter C that Warren had tried to take B's pants down. When everyone had left the room, C told her mother that "Bob does that to me all the time." When Mona asked C to be more specific, she replied, "He makes me take my clothes off ... [and then he] gets on top of me." After being found competent, C testified that while she was at Warren's house, Warren would have her remove her clothes and that Warren would then remove his own clothes and lie down on top of her. C indicated that Warren would place his penis against her crotch and that it hurt "really bad." C testified that Warren would also have her touch his penis and that such activity would go on for 10-15 minutes.

Dr. George Cozzetto, director of the Providence Hospital Emergency Department, testified that he examined C in June 1987, approximately two weeks after the last alleged contact occurred. According to Dr. Cozzetto, C indicated that "a man had laid on top of her and had tried to put his penis in ... her pee-pee." C's vaginal examination was inconclusive.

Warren's account of the activities on the afternoon of May 30 was essentially consistent with B's. Warren maintained, however, that he rode in the front seat of the car on the way home from dinner and did not touch B on the leg. According to Warren, B remained after Ingersoll left and then asked him for $40 for the work she had done. When Warren refused, telling B that she had to complete the entire job before getting paid, B became "a little angry." Warren also refused B's request for $10 or $20. B then told Warren that she was going to walk home and left. Warren stated that he did not follow B out the door but rather went to sleep on the couch. Warren disputed the testimony that he was not wearing a shirt when the police awakened him.

Warren also denied C's allegations. Several neighbors testified that Warren was an honest person and that C was known as "a story teller ... and likes to get attention," and that it had been "a little difficult" for B and C "to tell the truth on different occasions."

The jury returned verdicts finding Warren guilty of attempted first degree statutory rape for the allegations involving C, and guilty of attempted second degree rape for the allegations involving B. Warren was sentenced to concurrent terms of 30 and 40 months.

Warren first contends that the trial court erred by admitting C's hearsay statements to her mother and others without holding the hearing required by RCW 9A.44.120, ¹ Washington's child victim hearsay statute. Usually, the trial court's failure to comply with the hearing requirements of RCW 9A.44.120 constitutes error. State v. Leavitt, 111 Wash.2d 66, 71, 758 P.2d 982 (1988) (affirming 49 Wash.App. 348, 743 P.2d 270 (1987)); State v. Jackson, 46 Wash.App. 360, 730 P.2d 1361 (1986). ² However, counsel for Warren failed to object to the absence of a hearing and failed to object to the testimony during trial. A party's failure to object at trial precludes appellate review unless the alleged error is "truly of constitutional magnitude." State v. Scott, 110 Wash.2d 682, 688, 757 P.2d 492 (1988); see also RAP 2.5(a)(3).

In State v. Leavitt, supra, counsel for the defendant failed to object to the trial court's failure to hold the hearing required by RCW 9A.44.120 until well into presentation of the defendant's case. Our supreme court held that because both the child declarant and the hearsay recipients had testified at trial and were available for cross examination, no constitutional confrontation or due process concerns were implicated by the omission of the hearing. Consequently, defendant's failure to raise a timely objection precluded appellate review. Leavitt, 111 Wash.2d at 71-72, 758 P.2d 982.

Leavitt controls here. As in Leavitt, the hearsay declarant and the hearsay recipients testified and were subject to full cross examination. Consequently, no issue "truly of constitutional magnitude" was involved and the trial court's failure to hold a hearing pursuant to RCW 9A.44.120 was not preserved for appellate review. Cf. State v. Jackson, supra (objection to failure to hold hearing sufficient to preserve review). Similarly, Warren's contention that he had to execute a written waiver of the hearing will not be considered for the first time on appeal.

Warren next argues that RCW 9A.44.120 conflicts with the Washington Rules of Evidence and therefore violates art. IV, § 1 of the Washington Constitution. ³ In rejecting a comparable "separation of powers" argument, our supreme court in State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), noted that the legislative enactment of hearsay exceptions is specifically contemplated by ER 802. Ryan, at 178, 691 P.2d 197. Statutory hearsay exceptions are subject to judicial review, however, with our supreme court as the final arbiter. Ryan (rejecting contention that RCW 9A.44.120 conflicted with court rules regarding competency). We also rejected a similar separation of powers challenge to RCW 9A.44.120 in State v. Slider, 38 Wash.App. 689, 695-96, 688 P.2d 538 (1984), review denied, 103 Wash.2d 1013 (1985).

We decline appellant's invitation to adopt the reasoning of State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), in which the Arizona Supreme Court held that a statutory hearsay exception essentially identical to RCW 9A.44.120

conflicts with and "engulfs" the rules of evidence, impermissibly infringing on this court's constitutional authority to make procedural rules for the judiciary.

Robinson, 735 P.2d at 808. Robinson is inapposite, as it rests on a state constitutional provision that differs substantially from art. IV, § 1. Moreover, appellant has directed no argument to the language and effect of the Washington constitutional provision that he cites. See generally State v. Wethered, 110 Wash.2d 466, 472, 755 P.2d 797 (1988).

Warren next challenges the following testimony elicited during redirect examination of Mona:

Q. Have you ever known [B] to have ever accused someone of doing something important that you later found out was not true?

[Defense Counsel]: Objection. That is kind of a vague--

THE COURT: Overruled. You may answer.

A. Can you ask me again?

Q. Have you ever known [B] to accuse someone of doing something really major or really important that you later found out was not true?

A. I don't think so. I explained this. I said, "You'd better make sure because you're talking very serious here about what can happen to him and you'd better make sure you're telling the truth."

She said, "Mom, I would never lie about anything like this."

(Italics ours.) Although Warren has assigned error to the trial court's ruling on the objection to the question, his argument is directed to the emphasized portion of the answer, which was nonresponsive. Counsel for the defendant failed to object to or move to strike the nonresponsive answer. On appeal, Warren contends that the answer was inadmissible hearsay, was irrelevant, and that its prejudicial effect outweighed its probative value. Because Warren failed to raise these objections below, and they do not implicate constitutional concerns, th...