State v. Witthauer
| Decision Date | 16 July 2019 |
| Docket Number | 50934-2-II |
| Citation | 9 Wn.App.2d 1061 |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent/Cross Appellant, v. RONALD WITTHAUER, Appellant/Cross Respondent. |
UNPUBLISHED OPINION
Ronald Witthauer appeals from his convictions of second degree rape and indecent liberties with forcible compulsion, where his victim was his adult niece, CZ. At trial, the State presented DNA and other physical evidence, whereas Witthauer's account of what happened changed several times up to and including at trial.
Witthauer argues that the trial court erred when it prevented him from cross-examining CZ about the prior revocation of her pharmacy technician license and that the prosecutor committed misconduct during cross-examination of him and during closing argument. He also asserts cumulative error deprived him of a fair trial. He contends that the court erred in imposing a condition of community custody requiring him to obtain a chemical dependency evaluation. He also filed a statement of additional grounds.
The State cross-appeals, arguing the trial court improperly merged Witthauer's convictions of second degree rape and indecent liberties with forcible compulsion during sentencing.
We affirm Witthauer's convictions. We affirm in part and reverse in part Witthauer's sentence and remand for the trial court to either make the requisite chemical dependency finding or strike the challenged community custody condition.
CZ[1] and her friend took their children swimming at a river on a midsummer day. While they were there, CZ was talking to Witthauer about his recent breakup, first via Facebook and then via phone call. Witthauer told CZ he was depressed about the breakup and asked her if she would meet him so they could talk.
Witthauer driven by his friend, Dan Hainley, then picked CZ up from a nearby Wal-Mart while her friend took the children to her house. CZ's friend testified that the plan was for CZ to come pick up her son later that evening.
Witthauer was visibly intoxicated when he arrived. CZ denied drinking or consuming drugs earlier that day, but she did have a couple sips of vodka in the car as Hainley drove them. Rather than take CZ home as she expected, Hainley drove them to the home of CZ's grandmother (Witthauer's mother), where Witthauer had a motor home parked on the property.
Witthauer asked CZ to stay and have a beer with him, and she agreed to stay for a short while. Witthauer then brought CZ a beer-already opened-and they sat outside and started to drink. After a few sips, CZ began to feel dizzy; she tried to stand but fell down because her legs "were like jello." Verbatim Report of Proceedings (VRP) (Vol. 3) at 219-20. CZ testified that she was terrified and wanted to call her husband, but she had left her phone in Hainley's truck.
Witthauer picked CZ up and carried her into the motor home, telling her that she was drunk and she needed to "sleep it off." VRP (Vol. 3) at 220-21. CZ said she yelled at Witthauer to call her husband to pick her up and take her home; Witthauer told CZ he had called her husband, but she did not believe him. Witthauer put her on the bed in the motor home, and then went back outside with Hainley.
CZ testified that she laid face down on the bed, unable to move until she eventually lost consciousness. She woke up to the sound of Hainley's truck starting up and Hainley and Witthauer saying goodbye as Hainley drove off.
Witthauer then came into the motor home and asked CZ if she wanted to have sex with him. CZ, still unable to move, told him: VRP (Vol. 3) at 225. Witthauer responded that he was not joking and asked again if CZ wanted to have sex. She again said no, but Witthauer got on the bed and straddled the backs of her legs. CZ tried to push him away, but he grabbed her arm and pinned it to the bed as he pulled down her pants. CZ then tried to protect her vagina with her hand, but Witthauer pulled it away, pressed down on her neck, and put his penis in her vagina. At some point during the rape, Witthauer also put his finger in CZ's anus. CZ lost consciousness during part of the rape, but was awake when Witthauer finished, at which point he threw a blanket over her, told her he loved her, and went to bed a few feet away.
CZ eventually got up and tried to leave, but the door was locked so she was forced to spend the night in the motor home. She testified that she was terrified and thought Witthauer would kill her if she tried to get away. She also testified that she never thought he would do something like that to her, and she never would have gone with him that day if she had not trusted him as her uncle.
The next morning, Witthauer behaved as though nothing had happened. He told CZ her husband had been calling his phone. Witthauer then called CZ's husband and put the phone on speaker and stayed with CZ as she talked to her husband. CZ testified that she did not tell her husband anything about the rape because Witthauer was standing right there with the phone on speaker.
Witthauer then drove CZ home, still acting as though nothing had happened. They stopped to see Witthauer's friend, Tom Goringe, on their way, but CZ did not disclose anything to Goringe because she was humiliated and worried about what Witthauer might do. CZ testified that her goal was to "get out of that car alive" and to "[g]et home safe." VRP (Vol. 3) at 235-36.
When CZ got home, she called a close friend, Ramona Lowe, and disclosed what happened. Lowe testified that CZ was hysterical and crying so much she could barely talk. Lowe told CZ to call the police and go to the hospital for a sexual assault examination. CZ and her husband went to a hospital in Portland, Oregon later that day, where she underwent a sexual assault examination and made a report to the police.
CZ told her examining nurse, Jane Valencia, about how Witthauer had raped her and held her down by her neck. During the examination Valencia noted abnormal redness and swelling in and around CZ's vagina, white fluid in her vagina, and scratches on CZ's arms and the back of her neck. However, Valencia could not say whether the vaginal redness and swelling resulted from the rape or from CZ's sexual intercourse with her husband two days prior. Valencia took blood and urine samples from CZ, and also collected oral, vaginal, and cervical swabs.
CZ's blood samples showed no signs of drugs or alcohol, but her urine samples contained alcohol and the prescription drug clonazepam, a central nervous system depressant that slows down brain activity, impairs motor skills, and can cause drowsiness and confusion, particularly when combined with alcohol. Justin Knoy, a forensic toxicologist, testified that the test results were consistent with a person consuming alcohol and clonazepam about 12 hours prior to the sample being taken, though consumption could have occurred earlier or later.
In early August, Detective Elizabeth Luvera interviewed Witthauer, who told her that CZ was drunk when he picked her up, that he slept in his truck that night, and that he did not have sex with CZ. Witthauer also voluntarily gave Luvera a sample of his DNA.
CZ said that she and her husband use condoms when they have sex because she has a sensitivity to semen that causes a burning sensation; she testified that she knew Witthauer had ejaculated in her because her vagina was burning badly. The sample that Witthauer provided matched DNA from sperm cells found in CZ's vaginal and cervical swabs. After receiving the DNA results, Detective Fred Nieman went to Witthauer's motor home and took him into custody. Also after the DNA test results revealed his DNA was in CZ's vagina, Witthauer told family members that there was a conspiracy against him to plant his DNA inside CZ.
Before trial, the State moved to exclude extrinsic evidence and limit cross-examination regarding the Oregon Board of Pharmacy's prior revocation of CZ's pharmacy technician license. Witthauer sought to admit a letter from the Board to CZ, along with a certified copy of a default order against her, revoking her license based on an allegation that she had used patients' prescriptions to illegally obtain oxycodone for her own use. The trial court noted on the record that the order was entered by default, because CZ never responded to the notice of proposed disciplinary action.
At trial, during his cross-examination of CZ, defense counsel asked if she had ever been "accused" of diverting oxycodone, but the State objected based on the court's pretrial ruling and the court sustained the objection. VRP (Vol. 4) at 295. Defense counsel...
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