[No. 23504-1-III. Division Three. October 13, 2005.]
HERBERT NELSON , Individually and on Behalf of All Others Similarly Situated , Respondent , v. APPLEWAY CHEVROLET , INC . ET AL ., Petitioners .
[1] Judgment - Summary Judgment - Review - Standard of Review. A summary judgment is reviewed de novo.
[2] Statutes - Construction - Review - Standard of Review. Questions of statutory construction are reviewed de novo.
[3] Parties - Class Actions - Certification - Review - Standard of Review. A trial court's certification of a class is reviewed for an abuse of discretion.
[4] Declaratory Judgment - Statutory Provisions - Construction - Liberal Construction. The Uniform Declaratory Judgments Act (chapter 7.24 RCW) is liberally construed.
[5] Declaratory Judgment - Statutory Provisions - Purpose. The purpose of the Uniform Declaratory Judgments Act (chapter 7.24 RCW) is to clarify uncertainty with respect to rights, status, and other legal relations.
[6] Declaratory Judgment - Jurisdiction - Statutory Right. A trial court has jurisdiction to grant declaratory relief to a plaintiff requesting judicial construction of a statute under the Uniform Declaratory Judgments Act (chapter 7.24 RCW) if the plaintiff has a legal right under the statute that is capable of judicial protection.
[7] Action - Implied Right of Action - Statutorily Created Protection - Elements. A cause of action may be implied from a statute if (1) the plaintiff is within the class of persons for whose special benefit the statute was enacted; (2) legislative intent, explicitly or implicitly, supports the creation of a remedy; and (3) implying a remedy is consistent with the underlying purpose of the statute.
[8] Action - Implied Right of Action - Statutorily Created Protection - Need for Remedy. Where a statute creates a new right but no remedy, the common law will provide a remedy.
[9] Taxation - Business and Occupation Tax - Collection and Payment - Itemization and Collection From Purchasers or Customers - Validity - Determination - Declaratory Action - In General. Whether a business's practice of itemizing and collecting business and occupation taxes directly from purchasers or customers is lawful under RCW 82.04.500 may be determined in a declaratory judgment action brought by a purchaser or customer; i.e., a purchaser or customer may seek a judicial determination of rights under RCW 82.04.500 in a declaratory judgment action.
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[10] Declaratory Judgment - Authority of Court - Basis. A court may hear a declaratory judgment action if (1) a justiciable controversy exists and (2) the plaintiff has standing to bring the action.
[11] Declaratory Judgment - Justiciable Controversy - What Constitutes - Test. For purposes of a declaratory judgment action, a justiciable controversy is presented if (1) there exists an actual, present, and existing dispute, or the mature seeds of one (as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement), (2) between parties having genuine and opposing interests, (3) the interests involved are direct and substantial (rather than potential, theoretical, abstract, or academic, and (4) a judicial determination of the dispute will be final and conclusive.
[12] Declaratory Judgment - Parties - Standing - Test. The traditional doctrine of standing limits the justiciability determination in a declaratory judgment action and prohibits a plaintiff from raising another person's legal right. A two-part test is applied to determine whether a party has standing to bring a declaratory judgment action: The first part of the test asks whether the interest sought to be protected is arguably within the zone of interests to be protected or regulated by the statute or constitutional guaranty in question. The second part of the test considers whether the challenged action has caused an injury in fact, economic or otherwise, to the party claiming standing.
[13] Declaratory Judgment - Parties - Standing - Personal Harm - Necessity. To establish the harm element for standing to bring a declaratory judgment action, a plaintiff must demonstrate a justiciable controversy based on substantial allegations of harm personal to the party; standing is not established by speculative or abstract allegations of harm.
[14] Taxation - Business and Occupation Tax - Collection and Payment - Itemization and Collection From Purchasers or Customers - Validity - Determination - Declaratory Action - Standing. A purchaser or customer who pays a separately itemized business and occupation tax charged by a business has standing to seek a declaration as to whether the business's practice of itemizing and collecting business and occupation taxes directly from purchasers or customers is lawful under RCW 82.04.500 .
[15] Declaratory Judgment - Availability - Other Available Remedy - Effect. The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate.
[16] Statutes - Construction - Unambiguous Language - What Constitutes. The meaning of a plain and unambiguous statute must be derived from the wording of the statute itself. A statute is not ambiguous unless it is susceptible to two or more reasonable interpretations. A statute is not ambiguous merely because different interpretations are conceivable.
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[17] Statutes - Construction - Legislative Intent - In General. In construing a statute, a court must discern and carry out the intent of the legislature.
[18] Statutes - Construction - Meaning of Words - Literal Meaning. A court will avoid a literal reading of a statute if a literal reading would lead to an absurd result.
[19] Taxation - Incidence of Tax - Economic Burden - Designation by Legislature. Although the economic burden of a tax on business or commerce usually is passed on to customers, the legislature may designate the manner by which the pass-through must take place.
[20] Taxation - Business and Occupation Tax - Nature - Pass-On to Customers - Validity. Under RCW 82.04.500 , the business and occupation tax constitutes a part of a business' operating overhead. As such, although a business may disclose to purchasers and customers that the tax is an operating overhead expense, the tax may not be passed on to purchasers and customers as an itemized tax.
[21] Statutes - Construction - Authority - In General. The courts retain the ultimate authority to interpret a statute.
[22] Administrative Law - Rules - Validity - Presumption - Unambiguous Statute. An agency rule interpreting a statute that the agency is charged with administering and enforcing is not entitled to deference by a court if the statute is unambiguous.
[23] Parties - Class Actions - Standing - Personal Right of Action. An individual who personally has a legal right of action on a claim against a defendant has standing to litigate the claim on behalf of a class.
[24] Parties - Class Actions - Certification - Monetary Damages - Incidental to Injunctive or Declaratory Relief - Easily Ascertainable Damages. For purposes of class certification under CR 23(b)(2), a claim for money damages is merely incidental to a claim for injunctive or declaratory relief if the damages are easily ascertainable from existing documentation without reference to prior negotiations between the defendant and individual class members.Nature of Action: An individual who purchased a vehicle from a dealership pursuant to a sales agreement under which the plaintiff was required to pay an additional amount designated as the "business and occupation tax overhead" sought a declaration that the dealership's practice of itemizing and collecting the business and occupation tax from customers, and of collecting sales tax on the
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business and occupation tax, was unlawful. The plaintiff also sought an injunction prohibiting the dealership from assessing or collecting the business and occupation tax from Washington customers in the future and restitution on the basis of unjust enrichment. The plaintiff sought certification of the action as a class action on behalf of all customers from whom the dealership had assessed and collected the business and occupation tax.
Superior Court: The Superior Court for Spokane County, No. 04-2-01725-9, Kathleen M. O'Connor, J., on October 13, 2004, entered a judgment granting class certification; declaring that the dealership's practice of itemizing and collecting the business and occupation tax from customers, and of collecting sales tax on the business and occupation tax, violated the business and occupation tax statute; and enjoining the dealership from itemizing and collecting the business and occupation tax from customers in the future. The court subsequently denied the dealership's motion for reconsideration but stayed its grant of declaratory and injunctive relief for 30 days to allow the dealership to seek relief in the Court of Appeals.
Court of Appeals: Holding that the plaintiff properly pursued his claim as a declaratory judgment action; that the dealership's practice of itemizing and collecting the business and occupation tax from customers, and of collecting sales tax on the business and occupation tax, violated the business and occupation tax statute; and that the trial court did not abuse its discretion in certifying the class, the court affirms the judgment.
Gregg R. Smith ( Daniel F. Katz and Luba Shur of Williams & Connolly, L.L.P., of counsel ), for petitioners .
Brian S. Sheldon ; and Kim D. Stephens and Max E. Jacobs (of Tousley Brain Stephens, P.L.L.C. ), for respondent .
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¶1 KURTZ, J. - Business and Occupation (B&O) taxes are not intended to be construed as taxes upon purchasers or customers but, instead, "shall be levied upon, and collectible from, the person engaging in the business activities . . . [and] shall constitute part of the operating overhead." RCW 82.04.500 . Herbert Nelson purchased a vehicle from Appleway Volkswagen. After the purchase price was negotiated, the parties signed a sales agreement listing an additional amount designated as "Business & Occupation Tax Overhead."«1»Mr. Nelson filed an action seeking a declaratory judgment that Appleway's collection of the B&O tax, and the sales tax on the B&O tax, was unlawful. Mr. Nelson also requested class certification under CR 23(b)(2) and other relief. The court certified the class and granted summary judgment, concluding that Appleway's method of itemizing and collecting the B&O tax and B&O sales tax was unlawful.
¶2 In this appeal, Appleway challenges Mr. Nelson's right to bring this claim under Washington's Uniform Declaratory Judgments Act (UDJA), chapter 7.24 RCW. Appleway further contends RCW 82.04.500 authorizes the pass through of the B&O tax to customers. Appleway finally contends the court erred by certifying the class because Mr. Nelson lacked standing and has no cognizable claim. We conclude Mr. Nelson had a right to bring this claim under the UDJA. We hold Appleway's manner of assessing and collecting the B&O tax from customers violated RCW 82.04.500. We further hold Mr. Nelson has standing and his request for monetary relief did not bar certification under CR 23(b)(2). Accordingly, we affirm the judgment of the trial court.
«1»Clerk's Papers at 50.
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FACTS
¶3 In September 2002, Herbert Nelson purchased a used Volkswagen Cabriolet from Appleway Volkswagen in Spokane, Washington. Appleway Volkswagen is a car dealership within the Appleway Chevrolet, Inc., group of dealerships.
¶4 The parties agreed on the price of $16,822 for the vehicle and entered into an Agreement to Purchase (the Agreement). In addition to the sales price, the Agreement listed several fees and taxes, including Washington State sales tax of $1,255.60 and a charge of $79.23 for Washington State B&O tax. The amount of sales tax included sales tax charged on the B&O tax.
¶5 Washington B&O Tax. Washington imposes a B&O tax for the privilege of engaging in business. RCW 82.04.220. This tax is measured by the application of rates against the value of products, gross proceeds of sales, or gross income of a business. RCW 82.04.220 . At issue in this case is the operation of RCW 82.04.500 , which provides:
It is not the intention of this chapter that the taxes herein levied upon persons engaging in business be construed as taxes upon the purchasers or customers, but that such taxes shall be levied upon, and collectible from, the person engaging in the business activities herein designated and that such taxes shall constitute a part of the operating overhead of such persons.
¶6 Disclosure of B&O Tax. Appleway points out that the B&O tax was disclosed to Mr. Nelson at four places on the contracts. First, the Agreement stated that Mr. Nelson would be charged $79.23 "Business & Occupation Tax Overhead." Clerk's Papers (CP) at 50. Second, in small print on the back of the page listing the charges, paragraph 12 - of 13 paragraphs - read as follows:
12. Business and Occupation taxes (B&O tax) have been assessed on the negotiated sales amount. B&O taxes are a tax on businesses for the right to operate in the State of Washington, are an overhead expense of the dealership, and are assessed as a percentage of total sales. As such, the amount of
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B&O tax assessed on your transaction depends on the negotiated price of the vehicle, service, parts, or other items being purchased by you. Sales tax is assessed on both the negotiated selling price and the B&O tax amount. All advertised vehicles, services, parts, etc. are advertised at a specific price plus B&O tax, sales tax, luxury tax, license fees, or other governmentally mandated charges.
CP at 51.
¶7 Catherine Nelson initialed a line on the Acknowledgement of Terms and Conditions of Vehicle Transaction form indicating that: "I understand that the dealership is passing through the B&O tax overhead and that I am paying sales tax on the sales price and B&O tax amounts." CP at 53. Mr. and Mrs. Nelson signed the Retail Installment Contract and Security Agreement that also disclosed the B&O charge.«2»
¶8 Complaint. Mr. Nelson filed a complaint requesting a declaratory judgment that Appleway's collection of B&O tax, and the sales tax on the B&O tax violates RCW 82.04.500. Mr. Nelson also asked the court to enjoin Appleway from assessing or collecting these taxes from customers in Washington. Finally, the complaint also seeks further relief under RCW 7.24.080 , alleging that Mr. Nelson should receive restitution because Appleway has been unjustly enriched. The complaint alleged Mr. Nelson's claims are suitable for class treatment under CR 23(a) and (b)(2).
¶9 Significantly, the complaint does not allege claims based on theories of tort or contract, or based on a violation of the Washington Consumer Protection Act (CPA), chapter 19.86 RCW.
¶10 Decision on Summary Judgment Motions. Both parties filed motions for summary judgment as to the issue of whether Appleway's conduct was lawful. The superior court concluded that Appleway's practice of itemizing and collecting the B&O tax from customers, and Appleway's practice
«2»The B&O tax was also disclosed in Appleway's advertising and signage, which refer to "B&O Overhead." CP at 21-22.
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of collecting sales tax on the B&O tax, violated the applicable statutes. Finding Appleway's conduct had the potential to further injure Mr. Nelson, the court enjoined Appleway from collecting, " 'passing through,' " or " 'itemizing,' " the B&O tax and the B&O sales tax. CP at 388.
¶11 Class Certification. Along with his motion for summary judgment, Mr. Nelson moved for class certification. The court granted the motion, certifying the class as:
All individuals and entities from whom Defendants itemized and collected B&O Tax on the sale of motor vehicles, parts, merchandise, or service in the state of Washington.«3»
CP at 380.
¶12 Reconsideration. The court denied Appleway's motion for reconsideration but stayed its grant of declaratory and injunctive relief for 30 days to allow Appleway to seek relief in the appellate court.
¶13 Discretionary Review. Appleway filed a notice for discretionary review and a motion for a stay. This court granted both motions.
ANALYSIS
[1-3]¶14 Standard of Review. The facts are undisputed and our review of the trial court's decision on summary judgment is de novo. See Castro v. Stanwood Sch. Dist. No. 401 , 151 Wn.2d 221 , 224, 86 P.3d 1166 (2004). Questions of statutory construction are also reviewed de novo. State v. J.M. , 144 Wn.2d 472 , 480, 28 P.3d 720 (2001). A trial court's class certification decision is reviewed for an abuse of discretion. Lacey Nursing Ctr., Inc. v. Dep't of Revenue , 128 Wn.2d 40 , 47, 905 P.2d 338 (1995) (quoting Eriks v. Denver , 118 Wn.2d 451 , 466, 824 P.2d 1207 (1992)).
«3»The following are excluded from the class: defendants, any entity in which defendants have a controlling interest; any entity which has a controlling interest in defendants; defendants' legal representatives, assigns, and successors; the judge to whom the case is assigned and any member of the judge's immediate family.
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[4, 5]¶15 Declaratory Judgment. Under Washington's UDJA, a person whose rights, status, or other legal relations are affected by a statute may have any question concerning the construction of that statute determined by the court. Branson v. Port of Seattle , 152 Wn.2d 862 , 877, 101 P.3d 67 (2004). Specifically, RCW 7.24.020 reads, in part, as follows:
A person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder.
The UDJA is to be liberally construed and is designed to clarify uncertainty with respect to rights, status, and other legal relations. DiNino v. State , 102 Wn.2d 327 , 330, 684 P.2d 1297 (1984).
¶16 Enforceable Right/Private Cause of Action. One of the most contentious issues between the parties is whether Mr. Nelson is required to establish a private cause of action in order to obtain relief under the UDJA. This issue was raised at the summary judgment proceeding and the court concluded that Mr. Nelson need not show a private cause of action because he was not seeking tort damages. Appleway maintains the trial court erred because Mr. Nelson must establish an independent private cause of action in order to pursue this matter as a declaratory judgment.
¶17 The confusion on this question is understandable because the term "private cause of action" is frequently used in the context of tort litigation. While most tort theories arise from the common law, the legislature also has the power to define and change tort law. Geschwind v. Flanagan , 121 Wn.2d 833 , 841, 854 P.2d 1061 (1993). As a result, a duty may be imposed based on a statute or common law principles of negligence. Bernethy v. Walt Failor's, Inc. , 97 Wn.2d 929 , 932, 653 P.2d 280 (1982).
¶18 In contrast, an action seeking declaratory relief may involve the construction of a statute, and injunctive relief
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may be more appropriate than damages. See Wash. Fed'n of State Employees v. State Pers. Bd. , 23 Wn. App. 142 , 148, 594 P.2d 1375 (1979). For this reason, some declaratory judgment cases discuss whether there is a judicially enforceable duty and may or may not use the term "private cause of action." See, e.g. Wash. Fed'n , 23 Wn. App. at 148 ("legal right capable of judicial protection"); Camer v. Seattle Sch. Dist. No. 1 , 52 Wn. App. 531 , 536, 762 P.2d 356 (1988) ("private cause of action"; "private right of action"; "judicially enforceable duty").
[6-9]¶19 In any event, this court has no jurisdiction under the UDJA unless Mr. Nelson can show that he is asserting a statutory legal right capable of judicial protection. Wash. Fed'n , 23 Wn. App. at 148 . A cause of action will be implied if: (1) the plaintiff is in the class for whose benefit the statute was enacted; (2) the legislative intent expressly or implicitly supports creating or denying a remedy; and (3) implying a remedy is consistent with the purpose of the legislation. McCandlish Elec., Inc. v. Will Constr. Co. , 107 Wn. App. 85 , 96-97, 25 P.3d 1057 (2001). Where a statute provides a new right, but no remedy, a remedy will be provided. Id. at 97.
¶20 RCW 82.04.500 states that the B&O tax was created to tax businesses, not purchasers or customers - but that businesses may include this tax in their business overhead. The UDJA is available to resolve the tension inherent in RCW 82.04.500 . Consequently, purchasers or customers, like Mr. Nelson, may proceed under the UDJA to determine whether Appleway's method of itemizing and collecting the B&O tax was unlawful under RCW 82.04.500 .
¶21 Relying on Blockbuster, Inc. v. White , 819 So. 2d 43 (Ala. 2001), Appleway contends that customers have no judicially enforceable right under RCW 82.04.500 .
¶22 In Blockbuster , a customer sought damages based on allegations that the video store fraudulently passed on a rental tax to customers. Id. at 44. The language of the statute provided that the rental tax would be imposed on each person engaging in the business of leasing or renting
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tangible personal property. Id. Significantly, the provision did not contain language similar to that found in RCW 82.04.500 stating that the tax was not intended as a tax on customers. The court concluded that the customer had no private cause of action under the applicable statute. Blockbuster , 819 So. 2d at 44.
¶23 Appleway cites several Washington cases to support its position that an action under the UDJA requires an independent, private cause of action. But these cases are also distinguishable. In Washington Federation the court concluded that a plaintiff seeking relief under the UDJA must assert "a legal right capable of judicial protection which exists in a statute, constitution or common law." Wash. Fed'n , 23 Wn. App. at 148 . As a result, the court refused to allow review of a nonjudicial administrative decision under the UDJA because the agency was not engaging in statutory interpretation when making the decision. Id. at 146-48. In Camer , the court noted that declaratory relief was available to parties requesting construction of a statute, but the court concluded that the underlying administrative decisions did not involve the interpretation of a statute. Camer , 52 Wn. App. at 537 .
¶24 Appleway also contends that this court has no jurisdiction because remedies are available under other statutes. Along similar lines, Appleway maintains that there is no need to imply a private cause of action under RCW 82.04.500 because the legislature made the decision to provide other statutory remedies for customers.
¶25 Appleway's underlying assertion is true. Courts are unwilling to find an implied private cause of action where the legislature has established a specific administrative or judicial appellate procedure. See, e.g. , Williams v. Nat'l Sch. of Health Tech., Inc. , 836 F. Supp. 273, 281 (E.D. Pa. 1993), aff'd , 37 F.3d 1491 (3rd Cir. 1994). This restriction prevents the UDJA«4»from circumventing legislatively created enforcement provisions. Id.
«4»The federal statute concerning declaratory judgments is found at 28 U.S.C. § 2201 and, with exceptions in some subject areas, allows the federal courts to "declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought."
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¶26 But the Washington statutes Appleway suggests here are not helpful, or even applicable, remedies for Mr. Nelson. For example, Appleway contends that Washington customers have remedies for unfair and deceptive conduct under the CPA, RCW 19.86.090 . Appleway also contends there is an extensive statutory scheme relating to tax administration and recovery granting taxpayers private remedies against the Department of Revenue relating to claims of overpaid taxes. But the CPA provides relief for certain types of unfair trade practices. Likewise, the tax provisions cited by Appleway, RCW 82.32.060 , .150, .160, and .170, are available to taxpayers, not customers and purchasers such as Mr. Nelson.
¶27 In summary, a person whose rights, status, or other legal relations are affected by a statute may have a question of construction determined by the court. Branson , 152 Wn.2d at 877 . Here, Mr. Nelson has demonstrated a judicially enforceable right under RCW 82.04.500 sufficient to establish jurisdiction under the UDJA.
[10, 11]¶28 Justiciability and Standing. To proceed under the UDJA, a person must present a justiciable controversy and establish standing. A justiciable controversy is:
(1) . . . an actual, present and existing dispute, or the mature seeds of one, as distinguished from a possible, dormant, hypothetical, speculative, or moot disagreement,
(2) between parties having genuine and opposing interests,
(3) which involves interests that must be direct and substantial, rather than potential, theoretical, abstract or academic, and
(4) a judicial determination of which will be final and conclusive.
Diversified Indus. Dev. Corp. v. Ripley , 82 Wn.2d 811 , 815, 514 P.2d 137 (1973).
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[12-15]¶29 The traditional doctrine of standing limits the justiciability determination and prohibits a litigant from raising another person's legal right. Grant County Fire Prot. Dist. No. 5 v. City of Moses Lake , 150 Wn.2d 791 , 802, 83 P.3d 419 (2004) ( Grant County II). A two-part test has been developed for determining if a party has standing to bring an action. Id. When applying this test, the court first inquires whether the interest asserted is arguably within the zone of interests protected by the statute or constitutional right at issue. Id. (quoting Save A Valuable Env't v. City of Bothell , 89 Wn.2d 862 , 866, 576 P.2d 401 (1978)). Second, the court asks whether the party seeking standing has suffered an injury in fact, economic or otherwise. Id.
¶30 Appleway contends Mr. Nelson lacks standing to pursue a declaratory judgment action because the interest he asserts is beyond the scope of the statute. But RCW 82.04.500 states that the B&O tax "shall be levied upon, and collectible from, the person engaging in the business activities" and that the B&O tax is not intended to be "construed as taxes upon the purchasers or customers." As a purchaser, Mr. Nelson is certainly within the zone of interest contemplated by the statute.
¶31 Appleway also maintains that Mr. Nelson's interest must be beyond the scope of the statute because he cannot establish a private cause of action under RCW 82.04.500 . This argument repeats the assertions made in connection with the issue of jurisdiction. For example, Appleway relies on Van Eck v. Gavin , 44 Conn. Supp. 407, 690 A.2d 460 (1996). In Van Eck , the purchaser of petroleum products was not allowed to bring an action to challenge the assessment of a sales tax on the gross earnings of petroleum products because the purchaser did not qualify as a "taxpayer" authorized to appeal under the applicable statute. Id. 690 A.2d at 462.
¶32 Appleway also relies on Branson regarding the issues of standing and justiciability. In Branson , declaratory relief was denied because Mr. Branson and the class he represented lacked standing and because they failed to
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show a controversy arising between parties having genuine and opposing interests on the issue. Branson , 152 Wn.2d at 876 -77.
¶33 Mr. Branson challenged the "reasonable and uniform" provision of RCW 14.08.120 (6), which is part of the statutory scheme that allows a municipality to raise money for its airports. The provision in question reads, in part, as follows:
PROVIDED, That in all cases the public is not deprived of its rightful, equal, and uniform use of the property. Charges shall be reasonable and uniform for the same class of service and established with due regard to the property and improvements used and the expense of operation to the municipality.
RCW 14.08.120 (6) (emphasis added).
¶34 Mr. Branson rented cars from Sea Tac airport and, on each occasion, his bill included a separate line item to cover the concession fee the rental car companies paid to Sea Tac. These rental car companies paid a fixed rent for counter space, plus a concession fee of 10 percent of their gross income. Branson , 152 Wn.2d at 867 . Mr. Branson claimed the airport concession fees charged to rental car companies based on gross receipts denied the public uniform use of the property, were not uniform for the same class of people, and were not established with regard for the amount of property used and the expense of airport operation. Id. at 866.
¶35 The court determined that Mr. Branson lacked standing because he was not within the zone of interests intended to be protected by the "reasonable and uniform" provision. Id. at 876. The court acknowledged that the statute indicated that it was designed to protect the public by ensuring "equal and uniform public use," but determined that the "reasonable and uniform" provision pertaining specifically to charges indicated an intent to protect only those entities charged with fees by the Port of Seattle. Id. In other words, the protection offered by the language limiting charges did not extend to Mr. Branson because he was not
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charged the fee, but, instead, paid a recoupment fee to the rental car company. Id. Hence, the court determined that Mr. Branson did not fall within the zone of interests protected by the "reasonable and uniform" language. Id.
¶36 Branson also examined the justiciability requirements of the UDJA. The court concluded that the controversy arising out of the challenged statutory language was not between parties having genuine and opposing interests on the issue. Because the fees were not charged directly by the Port to Mr. Branson, the two parties were not sufficiently opposed to satisfy the justiciability requirement of the UDJA. Id. at 878.
¶37 In short, while Appleway relies heavily on Branson , this case is distinguishable as the language of the statute under consideration was vastly different than RCW 82.04.500.
¶38 Appleway next maintains Mr. Nelson cannot bring a claim under the UDJA because he cannot establish injury in fact.
¶39 To establish harm under the UDJA, the claimant must demonstrate a justiciable controversy based on allegations of personal harm that are substantial rather than speculative or abstract. Grant County II, 150 Wn.2d at 802 . Appleway maintains that Mr. Nelson was not harmed because he would have had to pay the operating overhead charge even if it had not been disclosed. We disagree. Mr. Nelson meets this test because he purchased a vehicle from Appleway and was charged with a "Business & Occupation Tax Overhead" charge after negotiating the purchase price. CP at 50. Also, CR 57 provides: "The existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." And, RCW 7.24.080 allows further relief based on a declaratory judgment or decree whenever necessary or proper.
¶40 In short, we conclude Mr. Nelson could bring this claim under the UDJA.
¶41 RCW 82.04.500 . The trial court concluded that Appleway's "itemizing and collecting B&O Tax and B&O
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Sales Tax from buyers violates the laws of the State of Washington," and enjoined Appleway from collecting, " 'passing through,' " or " 'itemizing' " B&O tax and B&O sales tax. CP at 388. Appleway contends the court erred because RCW 82.04.500 expressly permits the pass-through of the B&O tax, and, in any event, does not prohibit the itemization of the tax pass-through to customers.
[16-18]¶42 This court reviews questions of statutory construction de novo. State v. J.M. , 144 Wn.2d 472 , 480, 28 P.3d 720 (2001). When a statute is plain and unambiguous, its meaning must be derived from the wording of the statute itself. State v. Keller , 143 Wn.2d 267 , 276, 19 P.3d 1030 (2001). A statute is ambiguous if "susceptible to two or more reasonable interpretations," but "a statute is not ambiguous merely because different interpretations are conceivable." State v. Hahn , 83 Wn. App. 825 , 831, 924 P.2d 392 (1996). This court must discern and carry out the intent of the legislature, but must also avoid a literal interpretation leading to an absurd result. State v. Watson , 146 Wn.2d 947 , 955, 51 P.3d 66 (2002).
¶43 Plain Language. RCW 82.04.500 is unambiguous. First, RCW 82.04.220 provides that the B&O tax
shall be collected . . . for the act or privilege of engaging in business activities. Such tax shall be measured by the application of rates against value of products, gross proceeds of sales, or gross income of the business, as the case may be.
¶44 Second, RCW 82.04.500 specifically provides that the B&O tax is not to be "construed as taxes upon the purchasers or customers." Third, RCW 82.04.500 also provides that the B&O tax "shall be levied upon, and collectible from, the person engaging in the business activities herein designated and that such taxes shall constitute a part of the operating overhead of such persons."
¶45 Appleway points out that the statute unambiguously provides that the B&O tax may be passed on to the customer as part of operating overhead. While this is true, we must also read the statute to give meaning to the
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language stating that the B&O tax should not be construed as a tax on purchasers and customers.
¶46 Citing Canteen Service, Inc. v. State , 83 Wn.2d 761 , 762, 522 P.2d 847 (1974), Appleway reminds the court that "[t]he legal incidence of a tax does not always fall upon the same person or entity as the economic burden." Canteen Service, who sold cigarettes from vending machines, challenged that part of the sales tax and B&O tax assessed against the part of the sales price resulting from the cigarette stamp tax. Id. Unlike the provision we are considering, Canteen considered a statute which defined the selling price for purposes of the retail sales tax to include taxes or other expenses. Id. at 762-63.
[19]¶47 In other words, the economic burden of a tax is usually passed on the customers, but that does not mean that legislatures cannot design statutes to set forth the manner in which the pass-through must take place. Here, RCW 82.04.500 provides that the B&O tax can be added to operating overhead but cannot be passed on to the customer as a tax.
[20]¶48 Underlying Character of the Tax. Appleway next argues that itemization of the B&O tax is legal because the statute does not prohibit a seller from disclosing the pass-through as a line item on the sales agreement. In Appleway's view, this court cannot construe the statute as prohibiting itemization when the statute is silent and takes no position as to this practice. However, while RCW 82.04.500 does not expressly address itemization, the statute does state that the tax cannot be passed on to the customer and that the seller must consider the tax as an operating expense.
¶49 Appleway cites several out-of-jurisdiction cases to support the position that the itemization of a tax does not change its underlying character. These cases are distinguishable.
¶50 In Texaco Refining & Marketing Co. v. Commissioner of Revenue Services , 202 Conn. 583, 584-85, 522 A.2d 771
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(1987), the court addressed the question as to whether the funds collected from customers for the Connecticut gross earnings tax were includable in the gross earnings derived from the sales of petroleum products and subject to a tax on that amount. While the language in the statute was similar to the language in RCW 82.04.500 , the Connecticut statute dealt with the sale of petroleum fuel products, which apparently also contained some mechanism for price control. Texaco Ref. , 202 Conn. at 595. Of greater importance, the issue raised in Texaco Refining was not brought by customers, but by a seller of petroleum products who, by itemizing the B&O tax on petroleum products, was attempting to avoid the overall B&O tax on gross earnings for the petroleum tax portion of his earnings. Id. at 585-86.«5»
¶51 Likewise, in Pure Oil Co. v. State , 244 Ala. 258, 261, 12 So. 2d 861 (1943), the court determined the definition of gross sales for purposes of a tax on fuel oils where Pure Oil sought deductions for other items of taxation levied against it. Similarly, in United Nuclear Corp. v. Revenue Division , 98 N.M. 296, 300, 648 P.2d 335 (1982), the court determined that a seller/taxpayer could not deduct amounts it charged buyers for reimbursement of a severance tax where the applicable statute specifically provided it was "without deduction of any kind."
¶52 In other words, the cases relied upon by Appleway involve situations where a seller is attempting to deduct amounts charged to a buyer from a tax liability. These cases concluded that a seller who itemizes an amount on an invoice to the buyer does not change the seller's underlying responsibility for the tax. These cases are not helpful here because the statutory language is different and the customer charged with the itemized tax is bringing the action.
¶53 Appleway also contends that Branson demonstrates that a governmental fee imposed on a seller will not be
«5»The court gives this example: "Assume that the plaintiff sold petroleum products to a customer for a sales price of $1,000 - and a 2 percent tax of $20. According to the plaintiff, its taxable gross earnings on this transaction are $1,000. According to the defendant, the plaintiff's taxable gross earnings are $1,020." Texaco Ref. , 202 Conn. at 585 n.6.
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transformed into a governmental charge levied on a customer even if the charge is passed through to the customer by itemization on an invoice. However, as pointed out earlier, Branson determined that the "reasonable and uniform" provision did not apply to payments made by the customer. Branson , 152 Wn.2d at 876 .
¶54 Appleway also maintains that the provisions of RCW 82.04.500 were designed to protect the State's tax base and do not limit the manner in which the seller discloses the B&O tax to customers. But this is another jurisdiction or standing argument in that Appleway is arguing, again, that Mr. Nelson has no enforceable rights under RCW 82.04.500 . Mr. Nelson has an enforceable right because the plain language of the statute states that Appleway must treat the B&O tax as operating overhead and that the B&O tax cannot be treated as a tax on purchasers or customers.
¶55 Disclosure. Appleway argues that it would be unreasonable to construe RCW 82.04.500 to penalize disclosure of pricing information to customers. Moreover, Appleway points out that Mr. Nelson concedes that the B&O tax information could have been disclosed as part of the negotiation process.
¶56 But a plain reading of the statute allows for both payment of the tax by the seller and disclosure. Quite simply, the seller can disclose the B&O overhead charge to the purchaser, but it must be done while setting the final purchase price. The process here involved the negotiation of a price; hence, the information should have been disclosed as part of that process.
¶57 Relying on Bloom v. O'Brien , 841 F. Supp. 277 (D. Minn. 1993), Appleway suggests that any prohibition on disclosure raises First Amendment issues. Bloom considered a Minnesota statute imposing a gross revenue tax on health care providers and allowing health care providers to pass the tax on to customers. However, the statute also prohibited health care providers from itemizing the cost of the gross revenue tax on invoices. Id. at 278. The court
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granted a preliminary injunction concluding that this restriction placed a chilling effect on the health care providers' free speech. Id. at 281-82. Unlike RCW 82.04.500 , the Minnesota statute had no language indicating that the tax could not be passed on to customers.
¶58 Deference to Special Notice. Appleway also maintains that the superior court erred by failing to defer to the Department of Revenue special notice. The superior court refused to defer to this publication, concluding that the special notice was not a legal opinion and did not directly rule that the itemization of the B&O tax to the customer was legal.
[21, 22]¶59 We agree with the court's decision to reject the special notice. Courts have the ultimate authority to interpret a statute and do not defer to an agency's rule where no ambiguity exists in the statute. Edelman v. State ex. rel. Pub. Disclosure Comm'n , 152 Wn.2d 584 , 590, 99 P.3d 386 (2004).
¶60 CR 23(b)(2). A trial court's class certification decision is reviewed for an abuse of discretion. Lacey Nursing Ctr., Inc. v. Dep't of Revenue , 128 Wn.2d 40 , 47, 905 P.2d 338 (1995) (quoting Eriks v. Denver , 118 Wn.2d 451 , 466, 824 P.2d 1207 (1992)).
¶61 The trial court certified the following class:
All individuals and entities from whom Defendants itemized and collected B&O Tax on the sale of motor vehicles, parts, merchandise, or service in the state of Washington. Excluded from the Class are Defendants, any entity in which Defendants have a controlling interest, any entity which has a controlling interest in Defendants, and Defendants' legal representatives, assigns, and successors. Also excluded are the judge to whom this case is assigned and any member of the judge's immediate family.
CP at 380-81.
¶62 Appleway apparently concedes that Mr. Nelson has satisfied the prerequisites for class certification set forth in CR 23(a): numerosity, commonality, typicality, and ad
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equacy. Appleway also appears to concede that Mr. Nelson has met the first requirement in CR 23(b)(2), requiring that the defendants have acted or refused to act on grounds generally applicable to the class. Instead, Appleway argues that the class certification was inappropriate because Mr. Nelson lacked standing to represent the class and because Mr. Nelson's claim for monetary relief clearly predominates over his request for declaratory relief.
¶63 Does Mr. Nelson have standing to represent the class? The trial court concluded that Mr. Nelson's claims were "typical of those of the Class as a whole" and that Mr. Nelson would "fairly and adequately protect the interests of the class as a whole." CP at 377-78.
¶64 Appleway contends that Mr. Nelson lacked standing to represent the class because he cannot state a claim against Appleway on his own behalf. To support this claim Appleway relies on Corrigan v. Tompkins , 67 Wn. App. 475 , 836 P.2d 260 (1992), and Doe v. Spokane & Inland Empire Blood Bank , 55 Wn. App. 106 , 780 P.2d 853 (1989).
¶65 In Corrigan , the plaintiff failed to state a claim because he filed a suit against the commission for not following appeal procedures when he had an adequate remedy at law in the form of an appeal or petition for review. Corrigan , 67 Wn. App. at 477 -78. Here, Mr. Nelson properly sought a declaratory judgment to define and enforce a statutory right.
[23]¶66 In Doe , the named plaintiff admitted in depositions that he never had contact with the defendants and there was no evidence in the record supporting a basis for the plaintiff having named the defendants. Doe , 55 Wn. App. at 108 , 114. Accordingly, the plaintiff in Doe was not allowed to litigate a claim against the defendants on behalf of a class when he had no claim against the defendants himself. Id. at 115. Here, Mr. Nelson has a claim for the purchase of his vehicle from Appleway Volkswagen.
[24]¶67 Does the claim for monetary relief predominate? CR 23(b)(2) authorizes class certification where,
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among other things, the primary claim is for injunctive or declaratory relief and the request for monetary damages is merely incidental.
¶68 Appleway maintains that Mr. Nelson and the members of the class would not benefit from any declaratory or injunctive relief because each class member has already allegedly paid the B&O tax overhead. Moreover, Mr. Nelson seeks a substantial amount that was allegedly collected from thousands of class members. In view of these allegations, Appleway asserts that the claim for monetary relief clearly predominates.
¶69 Appleway relies on Fry v. Hayt, Hayt & Landau , 198 F.R.D. 461 (E.D. Pa. 2000) to support this assertion. But Fry is not helpful. Mr. Fry filed action against a law firm seeking damages stemming from a collection letter sent out by the firm that Mr. Fry alleged violated various state and federal statutes. The parties reached a settlement agreement and sought conditional class certification. The court granted conditional certification under CR 23(b)(3) and, in a footnote, determined that certification under CR 23(b)(2) was inappropriate because the plaintiffs had not sought an injunction in their original complaint and were seeking a substantial monetary amount of $453,500. Fry , 198 F.R.D. at 469 n.8.
¶70 Relying on Robinson v. Texas Automobile Dealers Ass'n , 387 F.3d 416 (5th Cir. 2004), Appleway next contends that individual trials would be necessary to determine the amount owed to each customer.
¶71 In Robinson , customers filed an action against automobile dealers and their association alleging that the practice of charging the vehicle inventory tax as a separate item resulted in horizontal price-fixing and a conspiracy to create a horizontal price-fixing regime. Id. at 420. The court reversed class certification because the court would have to determine whether a purchaser negotiated a top-line or a bottom-line strategy; hence, the court would have to hear evidence regarding the transaction of each class member. Id. at 423-24.
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¶72 Robinson is distinguishable on several grounds. First, the court in Robinson reviewed a CR 23(b)(3) certification, not a CR 23(b)(2) certification. Second, the issue in Robinson was whether the facts necessary to establish a horizontal price-fixing action predominated the proposed class. Id. at 422. Predominance is an issue in CR 23(b)(3) certification, not CR 23(b)(2) certification. As a result, the manner in which the class members negotiated the purchase price of their vehicle was crucial to the plaintiffs' ability to establish that they purchased the vehicle at a higher rate than the competitive rate. Id. at 422-24.
¶73 In contrast, here the issue is whether Appleway's itemization and collection of the B&O tax was unlawful. Presumably, damages can be obtained with reference to the individual sales agreements. There need not be any inquiry into Appleway's negotiations with each individual member of the class. The court did not abuse its discretion in certifying the class under CR 23(a) and (b)(2).
¶74 We affirm the judgment of the trial court.\
KATO , C.J., and SCHULTHEIS , J., concur. No. 28282-8-II. Division Two. March 22, 2005.]
THE STATE OF WASHINGTON , Respondent , v. STACEY R. FISHER , Appellant .
[1] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Test. Whether the Sixth Amendment right to confront adverse witnesses is implicated by the admission in a criminal trial of a hearsay statement made by an unavailable declarant depends on whether the statement is testimonial or nontestimonial in nature. A testimonial statement by an unavailable declarant may be admitted only if the defendant had a prior opportunity to examine the declarant. Nontestimonial statements do not implicate the Sixth Amendment right. Testimonial statements include: (1) ex parte in-court testimony or its functional equivalent, such as affidavits, custodial examinations, prior testimony not subjected to cross-examination, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially; (2) extrajudicial statements contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions; and (3) statements that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.
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[2] Criminal Law - Evidence - Hearsay - Right of Confrontation - Unavailability of Declarant - Testimonial or Nontestimonial Statement - Statement By Young Child During Medical Treatment. A statement made by a very young child in response to a question by a treating physician whose sole purpose is medical diagnosis or treatment under circumstances where use of the statement in a prosecution would not be reasonably foreseeable by an objective observer is nontestimonial in nature for purposes of determining whether admission of the statement in the form of hearsay testimony implicates the Sixth Amendment right to confront adverse witnesses.
[3] Evidence - Hearsay - Medical Diagnosis - Nature of Statement - Relevance to Diagnosis or Treatment. A hearsay statement is admissible under the medical diagnosis or treatment exception to the rule against hearsay (ER 803(a)(4)) if the declarant's apparent motive for making the statement is consistent with receiving medical treatment and the statement relates information on which the medical provider relies in making a diagnosis.
[4] Evidence - Hearsay - Medical Diagnosis - Children - Hospital Context - Purpose of Questioning. A hearsay statement by a very young child may be admitted under the medical diagnosis or treatment exception to the rule against hearsay (ER 803(a)(4)) where the statement was made to a treating physician in a hospital in which the child was undergoing medical tests and treatment and was made in response to a question by the physician that was meant to determine the proper course and duration of medical care.
[5] Evidence - Hearsay - Medical Diagnosis - Children - Reliability - Competency at Time of Trial - Necessity. The fact that a child witness is incompetent to testify at trial does not make the child's hearsay statement unreliable for purposes of admitting the statement under the medical diagnosis or treatment exception to the rule against hearsay (ER 803(a)(4)).
[6] Criminal Law - Evidence - Character Evidence - Rebuttal - Review - Standard of Review. A trial court's decision to allow the State to cross-examine a character witness for a criminal defendant is reviewed for a manifest abuse of discretion. A trial court does not abuse its discretion unless it bases its decision on untenable grounds or untenable reasons.
[7] Criminal Law - Evidence - Character Evidence - Rebuttal - In General. By relating a personal history supportive of good character, a criminal defendant may open the door to rebuttal evidence along the same line.[8] Criminal Law - Evidence - Character Evidence - Rebuttal - Specific Incidents. ER 405(a) permits the State to cross-examine a character witness for a criminal defendant with relevant
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specific instances of misconduct by the defendant so long as the purpose of the cross-examination is to impeach the witness and not to vilify the defendant's character. The validity of such cross-examination is measured by whether the defendant was unduly prejudiced and by whether allowing the cross-examination constitutes a manifest abuse of trial court discretion.
[9] Criminal Law - Trial - Misconduct of Prosecutor - Review - Deference to Trial Court. A trial court's ruling on a claim of prosecutorial misconduct is entitled to deference on appeal because the trial court is in the best position to determine whether the misconduct prejudiced the defendant's right to a fair trial.
[10] Criminal Law - Trial - Misconduct of Prosecutor - Burden of Proof - Prejudice. A criminal defendant alleging prosecutorial misconduct has the burden of establishing that the prosecutor's conduct was both improper and prejudicial. Prosecutorial misconduct does not constitute prejudicial error unless there is a substantial likelihood that the misconduct affected the verdict.
[11] Criminal Law - Trial - Misconduct of Prosecutor - Review - Harmless Error - Defendant Given Requested Remedy - Absence of Prejudice. A conviction will not be reversed on appeal on the basis of prosecutorial misconduct if the trial court gave the defendant the remedy requested and there is not a substantial likelihood that the State's improper conduct affected the jury's verdict.
[12] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Harmless Error - Effect of Instructions - Curative Instruction. In a criminal trial, the trial court's instruction to the jury to disregard arguments the evidence or law does not support may be sufficient to obviate any prejudice to the defendant of improper remarks made by the prosecutor.
[13] Trial - Instructions - Adherence by Jury - Presumption - Disregarding Inadmissible Evidence. Jurors are presumed to follow an instruction to disregard inadmissible evidence.
[14] Criminal Law - Trial - Misconduct of Prosecutor - Misidentification of Whom Admission Made To. A prosecutor's misidentification of the person to whom a criminal defendant made an out-of-court admission is not prejudicial to the defense if the admission is in evidence and the defense can clarify the context of the admission during closing argument.
[15] Criminal Law - Trial - Misconduct of Prosecutor - Argument - Inferences From Evidence. A prosecuting attorney has wide latitude in closing argument to draw reasonable inferences from the evidence.
Nature of Action: Prosecution for second degree child assault.
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Superior Court: The Superior Court for Cowlitz County, No. 00-1-00931-1, James E. Warme, J., on January 4, 2002, entered a judgment on a verdict of guilty.
Court of Appeals: Holding that the trial court did not err by admitting the child victim's hearsay statement under the medical diagnosis or treatment exception to the rule against hearsay, by allowing the State to cross-examine a defense character witness with evidence that the defendant had once spanked the victim, or by denying a motion for a mistrial and a motion for a new trial based on prosecutorial misconduct, the court affirms the judgment.
James K. Morgan , for appellant .
Susan I. Baur , Prosecuting Attorney, and J. Tobin Krauel , Deputy, for respondent .
¶1 HOUGHTON, J. - Stacey Russell Fisher appeals his conviction of second degree child assault, arguing that the trial court erred in admitting a child hearsay statement, in allowing the State to cross-examine defense character witnesses with evidence that he had spanked the victim, and in denying a motion for a mistrial and a motion for a new trial based on prosecutorial misconduct. We affirm.
FACTS
¶2 On September 22, 2000, Deidre Toews left her house at about 9:00 P.M . to pick up her mother at work. She left her 29-month-old son Ty and her year-old daughter Aisha in the care of her boyfriend Fisher. When Toews left, Aisha was sleeping in her playpen in the living room and Ty was sitting on the living room couch.
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¶3 Toews called approximately 30 minutes later to check on the children and Fisher said that Ty had fallen down the stairs. Toews told Fisher to keep Ty awake because of a possible head injury. Toews and her mother, Bette Marsh, rushed home to find Ty in an upstairs bedroom with the lights dimmed. His eyes were rolled back, his head was swollen, discolored, and "mushy," and he was vomiting. 5 Report of Proceedings (RP) at 701. Marsh called 911 dispatch for medical assistance. EMTs examined and treated Ty and transported him to the hospital. RP 116-17.
¶4 Fisher told Dr. Dennis Ford, an emergency room physician, that he had fallen asleep while watching the children. He awoke when he heard a noise and saw Ty bleeding, and he assumed that Ty had fallen down the stairs. When Ford examined Ty, the child told the doctor he had fallen. Ford then asked Ty whether he fell down the stairs, and Ty answered affirmatively.
¶5 Ty initially received emergency medical treatment, including intravenous (IV) therapy, x-rays, scans, and examinations. The emergency staff placed him in the room closest to the nurse's station where he could be constantly monitored. The staff kept him restrained to complete the x-rays. He was admitted to the hospital from the emergency room and placed in a hospital bed. His chin wound had been numbed and sutured closed.
¶6 Dr. Susan Klenk, a family practice physician, saw Ty at approximately 10:00 the next morning. Toews was the only other person in Ty's room, and Klenk spoke with her first. Klenk then asked Ty what had happened, and he pointed to his forehead and said, "Stacey hit me right here." 1 RP at 88.
¶7 Investigators examined the farmhouse where Toews lived with her children and found no blood within four feet of the base of the stairs, although they did find a few drops of blood on the stairs. They also found blood on Ty's clothing, streaks of blood on the living room floor, and a pool of blood containing blond hairs in the toy corner of the living room. Ty has blond hair.
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¶8 Two days after the incident, Toews found a broken easel with blood on it hidden in the toy corner. Fisher told her that he had stepped on it. He then took the pieces and threw them into a nearby ravine.
¶9 The State charged Fisher with one count of second degree child assault. Before trial, the court conducted a hearing to determine the admissibility of Ty's hearsay statement to Klenk.
¶10 Klenk testified that Ty was admitted to the hospital for head trauma and he remained hospitalized for six days. Klenk described Ty's injuries as a scrape on the bridge of his nose, bruising on his left ear and the left side of his scalp that extended to the right side, a swollen area on the back of his head, bruising and a large hematoma on his forehead, bruising and scraping on his neck and the upper part of his back, and a small bruise on his right buttock. She said that she reviewed Ford's handwritten notes before examining Ty and knew that, although they described a fall down the stairs as the reported cause of his injuries, they also disclosed the possibility of abuse. Ford's notes indicated further, however, that Ty did not exhibit fear toward Fisher while in the emergency department.
¶11 Klenk also reported that although Ty's injuries seemed consistent with a fall down the stairs, she could not determine their cause from mere observation. She added that a child's abuse disclosure would be relevant to his treatment and length of stay. She also said that although she probably introduced herself as a doctor to Ty's mother, she was not sure whether she introduced herself to Ty. She also was not sure whether she wore a white jacket or stethoscope, although she did wear her name tag identifying her as a doctor.
¶12 The State argued that Ty's statement to Klenk was admissible under ER 803(a)(4) as a statement made for the purpose of medical diagnosis, noting that Klenk asked Ty about the cause of his injuries so that she could make a diagnosis and offer him the best care. The court found the statement admissible under ER 803(a)(4) because, regard
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less of the doctor's motive in questioning, Ty had no reason to lie. When defense counsel argued that nothing showed that Ty understood that the statement he made would further medical diagnosis or treatment and that the test for admitting hearsay under ER 803(a)(4) had not been met, the court agreed to reconsider the issue.
¶13 On September 5, the court heard additional argument on the admissibility of Ty's statement. The State argued that the statement was admissible under the child hearsay statute, RCW 9A.44.120 , and the Ryan factors as well as ER 803. State v. Ryan , 103 Wn.2d 165 , 691 P.2d 197 (1984). When the court again ruled that the statement was admissible under ER 803(a)(4), defense counsel argued that Ty's competency must be considered, and the court called for briefing on the issue.
¶14 At the next hearing, the State noted that, although the court had ruled Ty's statement admissible under ER 803(a)(4), "Both parties want to proceed under also the Ryan theory." RP (Oct. 26, 2001) at 126. The State then called Ty to the stand to determine his competency. After a brief examination, during which Ty identified the prosecutor as a "dog" and his grandmother as a "puppy," the court interrupted the questioning, having concluded that Ty was not competent to testify. RP (Oct. 26, 2001) at 141.
¶15 The State then called Toews, who testified that she could not think of a reason why Ty would lie about Fisher's culpability. She admitted that Ty told stories but added that he "always comes out with the truth." RP (Oct. 26, 2001) at 227.
¶16 Marsh testified that she did not think Ty would make false accusations. She also testified that when Fisher lay next to Ty in his hospital bed the day after the incident, the child seemed fearful and asked her not to leave. She added that Ty expressed fear about going home and asked several times if Fisher was there. She admitted that Ty's paternal grandmother had told Ty repeatedly, after appearing at the hospital two days after the incident, that she would protect him from Fisher.
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¶17 During argument, the State discussed the statement's admissibility under the Ryan factors, but defense counsel argued that if Ty was incompetent, there was no reason to discuss those factors. The court agreed that the Ryan factors did not warrant discussion because the statement was admissible under ER 803(a)(4). Although Ty was not competent to testify as a witness, he was competent to understand that he had been hurt and to say who had injured him. In a separate ruling, the court found that a detective's testimony that Fisher had admitted to spanking Ty on occasion was not admissible as part of the State's case in chief.
¶18 At trial, the witnesses testified as set forth above. In addition, Marsh testified that after Fisher had spent time talking to the investigating authorities, he spoke with her in the hospital parking lot and said, "I might as well say I did it and get it over with." 2 RP at 204.
¶19 Dr. Naomi Sugar, a child abuse consultant, testified that Ty's injuries did not comport with a fall down the stairs. She opined that it was much more likely "that there was an inflicted injury or abusive injury to this child." 2 RP at 267.
¶20 When defense counsel called several witnesses to testify about Fisher's reputation for being peaceful and gentle with children, the court allowed the State to cross-examine them by asking if they had heard that Fisher had spanked Ty and had referred to spanking him in a letter.
¶21 The prosecutor asked Toews whether she talked to Ty after he made the statement to Klenk and whether she tried to find out how he got hurt. Defense counsel objected, arguing that the State had paused after asking Toews whether she asked Ty what had happened, and thus had tried to elicit inadmissible hearsay evidence. After observing that his client could not afford a mistrial, defense counsel asked the court to admonish the prosecutor. The court said that the objection was well taken but that it would not be proper to ask the jury to disregard the question. "But I agree with the analysis that it was irrel
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evant and that it was fraught with untoward possibilities." 5 RP at 744. Toews testified that once when she asked Fisher how Ty got hurt, Fisher said that he should say he did it and get it over with. She also said that Fisher had referred to Ty as the "Anti-Christ." 5 RP at 731.
¶22 Fisher testified that after Ty fell, he bathed and put him to bed before Toews called. Fisher stated that he then wiped up the blood downstairs and stacked up the easel he had broken. He was downstairs when Toews and Marsh arrived.
¶23 The State began its closing argument by explaining that Ty was not competent to testify and that the child "wouldn't be able to handle this type of intense cross-examination." 8 RP at 1107. Defense counsel objected and the court instructed the jury to disregard argument the law and the evidence did not support.
¶24 The State then discussed Fisher's actions after Ty was injured, pointing out that Fisher had bathed him and put him to bed. "What happens with a head injury when you fall asleep? You die. You die. Death. Death if you fall asleep with a head injury." 8 RP at 1125. Defense counsel did not object.
¶25 The State also asked the jury whether they remembered "that part of Sgt. Nelson's testimony when he has the defendant on tape and boxed in? He says, 'What are they going to do to me? Maybe I should just as well admit it.' " 8 RP at 1139. Defense counsel again objected: "That's not the evidence. Talking about Nelson in that context, that is not the evidence." 8 RP at 1139. The court again instructed the jury to disregard any argument the evidence did not support.
¶26 In his closing argument, defense counsel responded to the implication that Fisher put Ty in bed and dimmed the lights so that the child would fall asleep and die. "But what he tells us, and what in fact he told Deidre . . . is that he tried to keep him awake until she got home. When she got home, what did she tell you? The boy was awake." 8 RP at 1204.
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¶27 In rebuttal, the State responded that Toews had asked Fisher to wake Ty up and keep him awake and that Fisher had ignored this instruction. "If you want to hide somebody, you want them to be asleep and you want them to be in the dark so they can't be seen. That's where you hide a child that's been abused." 8 RP at 1246. When defense counsel objected that nothing in Toews's statement indicated that Ty had been asleep, the court overruled the objection.
¶28 Fisher moved for a mistrial after the jury began deliberating, arguing that the prosecutor committed misconduct in examining Toews and during closing argument. The court denied the motion without prejudice because by then the jury had reached a verdict. After the jury announced that it had found Fisher guilty as charged, he filed a motion for a new trial, again on the basis of prosecutorial misconduct. The court denied the motion. Fisher appeals.
ANALYSIS
Hearsay Testimony
Crawford v. Washington
¶29 Fisher first contends that the trial court erred in admitting hearsay statements. He asserts that the United States Supreme Court's recent ruling in Crawford «1»precludes the treating doctor from testifying that Ty identified Fisher as his assailant. Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). More specifically, he argues that Crawford renders inadmissible Klenk's statement that when she asked Ty what had happened, he pointed to his forehead and said, "Stacey hit me right here." I RP at 88.
[1]¶30 In Crawford , the Court held that the confrontation clause bars introducing a testimonial hearsay state
«1»The Supreme Court rendered its Crawford opinion after argument in this case. Crawford v. Washington , 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). We called for additional briefing based on Crawford .
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ment unless the hearsay declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Crawford , 124 S. Ct. at 1374. Crawford thus distinguishes between testimonial and nontestimonial out-of-court statements. When testimonial hearsay is at issue, the Sixth Amendment demands unavailability and a prior opportunity for cross-examination. Crawford , 124 S. Ct. at 1374. But when the admissibility of nontestimonial hearsay is at issue, the individual states are entitled to determine what statements should be admitted and what statements should be excluded. Crawford , 124 S. Ct. at 1374.
¶31 Although the Crawford court declined to provide a comprehensive definition of testimonial statements, it did describe three "formulations of [the] core class" of such statements. 124 S. Ct. at 1364. This description is as follows:
In the first, testimonial statements consist of "ex parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." The second formulation described testimonial statements as consisting of "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Finally, the third explained that testimonial statements are those "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."
Horton v. Allen , 370 F.3d 75, 84 (1st Cir. 2004) (quoting Crawford , 124 S. Ct. at 1364) (citations omitted). The Court declined to settle on a single formulation but noted that whatever else the term "testimonial" covers, it applies to "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed." Crawford , 124 S. Ct. at 1374.
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¶32 In applying Crawford , the Nebraska Supreme Court cited the above excerpt from Horton and concluded that a four-year-old child's statements to an emergency room physician did not constitute testimonial statements under Crawford . State v. Vaught , 268 Neb. 316, 682 N.W.2d 284, 291 (2004). In Vaught , the physician testified that before he examined the child, he asked her what had happened, and she stated that the defendant had sexually assaulted her. The Nebraska court held that the only purpose of the emergency room examination was to provide medical treatment: "There was no indication of a purpose to develop testimony for trial, nor was there an indication of government involvement in the initiation or course of the examination." Vaught , 682 N.W.2d at 291. The court concluded that the hearsay did not share any of the characteristics of testimonial statements set forth in Crawford .
¶33 Similarly, a Minnesota appellate court held that testimony relating a three-year-old's response when a nurse practitioner asked her if anything had happened was not testimonial hearsay. State v. Scacchetti , 690 N.W.2d 393, 396 (Minn. Ct. App. 2005). The court noted that the nurse practitioner sought information to provide a medical diagnosis and was not working on behalf of, or in conjunction with, investigators developing the case against the defendant. Scacchetti , 690 N.W.2d at 396.
¶34 The facts in Vaught and Scacchetti stand in contrast with those in Snowden v. State , 156 Md. App. 139, 846 A.2d 36 (2004). In Snowden , the Maryland Court of Special Appeals held that statements made by two abused children to a county social worker were testimonial in nature. The children were interviewed for the express purpose of allowing the social worker to testify in their stead under a "tender years" statute that permits certain persons to testify in lieu of a child in sexual abuse cases. The court held that under Crawford , Snowden was entitled to a new trial without such testimonial hearsay. Snowden , 846 A.2d at 47.
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¶35 A California appellate court reached a similar result in People v. Sisavath , 118 Cal. App. 4th 1396, 13 Cal. Rptr. 3d 753 (2004). The court found that a videotaped interview with the four-year-old victim at a facility designed for interviewing children suspected of being victims of abuse was testimonial. The interview took place after the complaint and information had been filed and after a preliminary hearing had been held; it was attended by the prosecuting attorney and an investigator from the district attorney's office. Under these facts, there was no question that the child's statements were made under circumstances that would lead an objective witness reasonably to believe that the statements would be available for use at a later trial. Sisavath , 13 Cal. Rptr. 3d at 757.
[2]¶36 This case is obviously more similar to Vaught and Scacchetti than to Snowden and Sisavath . Here, a family practice physician examined Ty the morning after his admission to the hospital. After talking to his mother, the doctor asked him what had happened. She was not a government employee, and Fisher was not then under suspicion. And the doctor testified that she questioned Ty as part of her efforts to provide him with proper treatment. Here, as in Vaught and Scacchetti , there was no indication of a purpose to prepare testimony for trial and no government involvement. Nor was the statement given under circumstances in which its use in a prosecution was reasonably foreseeable by an objective observer. Because the hearsay statement was not testimonial, Crawford does not apply, and we need only examine its admissibility under the hearsay rules or Washington's child hearsay statute, RCW 9A.44.120 .«2»
ER 803 and RCW 9A.44.120
¶37 Fisher also asserts that Ty's statement was inadmissible under ER 803(a)(4) and RCW 9A.44.120 . We first address the evidentiary rule.
«2»The State argues that Fisher waived this issue by failing to assert a confrontation clause violation at trial. Even if this were so, on appeal that he asserted a Sixth Amendment rights violation below.
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[3]¶38 Under ER 803(a)(4), "statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible. To be admissible, the declarant's apparent motive must be consistent with receiving treatment, and the statements must be information on which the medical provider reasonably relies to make a diagnosis. State v. Lopez , 95 Wn. App. 842 , 849, 980 P.2d 224 (1999).
[4]¶39 The circumstances surrounding Klenk's initial interview of Ty indicate that Ty would understand that he was being questioned for purposes of medical treatment. Before Klenk spoke with Ty, he had been transported in an ambulance, x-rayed, scanned, examined, sutured and had received IV therapy. When he spoke with Klenk, he was in a hospital bed in a hospital room where he had spent the night. Given these facts, Ty's statement was made in the context where a declarant knows that his comments relate to medical treatment. Ty's statement was properly admitted through Klenk under ER 803(a)(4).
¶40 Fisher contends, however, that Klenk's question to Ty was for forensic rather than treatment purposes and thus not admissible under ER 803(a)(4). As support, he cites Division Three's refusal to admit hearsay statements made to a forensic interviewer for sexually abused children under ER 803(a)(4) where the State conceded that the interviews were for trial preparation rather than medical diagnosis or treatment. Lopez , 95 Wn. App. at 849 .
¶41 There is no such concession here. Although Klenk initially testified that her care would not have depended on Ty's answer to her question, she added that a child's abuse disclosure relates to his or her hospital care. She testified that she went to Ty's room to evaluate what additional action to take on his behalf.
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¶42 As Division One has stated, "[i]n determining whether an injury is intentional or accidental, to prevent further child abuse, a physician must attempt to get a history from the child and determine whether the history adequately explains the injury." In re Dependency of S.S. , 61 Wn. App. 488 , 501, 814 P.2d 204 (citing State v. Butler , 53 Wn. App. 214 , 218-19, 766 P.2d 505 (1989)), review denied , 117 Wn.2d 1011 (1991); see also United States v. Renville , 779 F.2d 430, 436 (8th Cir. 1985) ("[s]tatements by a child abuse victim to a physician during an examination that the abuser is a member of the victim's immediate household are reasonably pertinent to treatment"). Klenk's inquiries were made, not for trial preparation, but to determine the proper course and duration of medical care. The analysis in Lopez does not render Ty's statement inadmissible under ER 803(a)(4).
[5]¶43 Finally, Fisher contends that the trial court erred in failing to make a separate determination that Ty was competent at the time of his statement before admitting it under ER 803(a)(4). As support for this contention, he relies on State v. Karpenski , 94 Wn. App. 80 , 971 P.2d 553 (1999), overruled by State v. C.J. , 148 Wn.2d 672 , 63 P.3d 765 (2003).
¶44 In Karpenski , we held that before admitting a child hearsay statement under RCW 9A.44.120 , a trial court must find that the child was competent at the time the statement was made. Karpenski , 94 Wn. App. at 112 . The admissibility of the child's hearsay statement to a doctor under ER 803 was not at issue in Karpenski because no error had been assigned to the statement's admission and no objection had been made at trial. Karpenski , 94 Wn. App. at 123 . We stated, however, that if a proper objection were made to the doctor's testimony following remand, the trial court should consider the seven-year-old victim's competence when he spoke to the doctor, whether he was aware he was speaking for medical diagnosis and treatment, and "all other circumstances affecting the statement's reliability as of the time it was made." Karpenski , 94 Wn. App. at 123 .
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¶45 Our Supreme Court reversed Karpenski in State v. C.J. , 148 Wn.2d 672 , 684, 63 P.3d 765 (2003), holding that competency at the time of the statement is not a prerequisite to admissibility of child hearsay under RCW 9A.44.120 . In so holding, the court noted that the defendant had not appealed the trial court's decision to admit the hearsay evidence under ER 803. C.J. , 148 Wn.2d at 678 n.1. Fisher thus argues that C.J. is not dispositive because it did not discuss ER 803 and that Karpenski requires a finding of competency at the time of the statement before evidence is admissible under the rule. Although Fisher correctly summarizes Karpenski , the C.J. decision constrains us to reject Fisher's argument.
¶46 The trial court did not err in admitting Ty's hearsay statement under ER 803(a)(4) and in finding that no separate inquiry into his competency at the time of the statement was necessary.«3»
Spanking Evidence
¶47 Fisher next contends that the trial court erred in allowing the State to cross-examine his character witnesses with evidence that Fisher had spanked Ty.
¶48 At issue here was the admissibility of evidence showing that Fisher had once spanked Ty and that he had written in a letter to Toews that she should "give Ty a spanking for me." 2 RP at 216. The court found such evidence inadmissible in the State's case in chief but admissible to cross-examine the character witnesses who testified to Fisher's reputation for being peaceful and gentle with children.
[6-8]¶49 We do not disturb a trial court's ruling allowing the cross-examination of character witnesses absent a manifest abuse of discretion. State v. Styles , 93 Wn.2d 173 , 176-77, 606 P.2d 1233 (1980). A court abuses its discretion
«3»The State also argues that Ty's statement was admissible under RCW 9A.44.120 . Because we hold that Ty's statement was admissible for other reasons, we do not address this argument.
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when it bases its decision on untenable grounds or untenable reason. State v. Moran , 119 Wn. App. 197 , 218, 81 P.3d 122 (2003), review denied , 151 Wn.2d 1032 (2004). By relating a personal history supportive of good character, a defendant may be opening the door to rebuttal evidence along the same line. State v. McFadden , 63 Wn. App. 441 , 450 n.25, 820 P.2d 53 (1991), review denied , 119 Wn.2d 1002 (1992). And ER 405(a) specifically allows cross-examination into "relevant specific instances of conduct" where a witness offers testimony concerning a person's reputation. The primary purpose of such cross-examination, however, must be to impeach the witness and not to vilify the defendant's character. Styles , 93 Wn.2d at 176 .
¶50 The limited cross-examination that the trial court allowed on this subject did not serve to vilify Fisher. When one witness testified that Fisher had the reputation for "almost being a teddy bear" around children, with "a very gentle soul that's almost like a pied piper" (3 RP at 404), the State cross-examined him as follows after describing the children involved in this case:
Q: . . . Now, would your opinion of his character for being gentle to children change if you had seen a letter in which he says: Give the boy a spanking and give the daughter a kiss for me?
A: Um, no. I think you're stretching it, misinterpretation there. Like I say, I can draw from my own experience on that both ways.
Q: Simple yes or no? A: No, it would not change at all.
. . . .
Q: Okay. And what about these circumstances: Are you aware of a fact that as a boyfriend, that when the mom was around, he would spank the child. Would that change your opinion about his gentle nature towards children?
A: A swat on the diaper? No.
Q: I'm not saying that.
A. No.
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3 RP at 407-08. When he testified, Fisher explained that his spanking consisted of once swatting Ty on the rear because the child had hit his sister over the head with a toy. The record does not demonstrate that the spanking evidence unduly prejudiced Fisher or that the trial court committed a manifest abuse of discretion by allowing cross-examination of character witnesses on the subject.
Prosecutorial Misconduct
¶51 Finally, Fisher contends that the trial court erred in denying his motions for a mistrial and a new trial because of prosecutorial misconduct.
¶52 At issue here is the prosecutor's questioning of Toews about whether she asked her son about the cause of his injuries and the attorney's references during closing argument to Ty's competency, to Fisher admitting his guilt to Sergeant Nelson, and to Fisher allowing Ty to fall asleep despite his head injuries.
[9, 10]¶53 We give deference to a trial court ruling on prosecutorial misconduct because it is in the best position to determine if the misconduct prejudiced the defendant's right to a fair trial. State v. Luvene , 127 Wn.2d 690 , 701, 903 P.2d 960 (1995). The defendant bears the burden of establishing both the impropriety of the prosecutor's conduct and its prejudicial effect. State v. Brett , 126 Wn.2d 136 , 175, 892 P.2d 29 (1995), cert. denied , 516 U.S. 1121 (1996). Prosecutorial misconduct does not constitute prejudicial error unless we determine that there is a substantial likelihood that the misconduct affected the verdict. Brett , 126 Wn.2d at 175 .
[11]¶54 Fisher contends that the prosecutor committed prejudicial error when he asked Toews whether she questioned Ty, after the child made his disclosure to Klenk, about how he got hurt. The pertinent questions and answers were as follows:
Q: Okay. Did you have a conversation with Ty separate from Dr. Klenk about the same time when Dr. Klenk wasn't
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around? I don't want you to tell me what Ty said, I just want - after Dr. Klenk had that disclosure, was there another time you went in to talk to Ty about that?
[Defense counsel]: Objection, Your Honor. Can we be heard on this?
THE COURT: I'm going to overrule the objection on that question, that did she talk to Ty.
Q: Did you talk to your son separately and try to find out how he was hurt after that?
A: Yeah.
5 RP at 726-27. After the jury recessed, defense counsel again objected to this line of questioning and to the pause that followed Toews's answer. When the court asked whether defense sought relief, counsel replied that Fisher could not afford a mistrial and requested admonishment. When the State could not explain the relevancy of its question to the court's satisfaction, the court explained that the objection was well taken but that no relief was available.
¶55 Fisher fails to show that the trial court abused its discretion in making this decision. Although, as the court ultimately observed, the State came "close to the line" in questioning Toews, the court did not think the question amounted to reversible error. RP (Jan. 4, 2002) at 23-24. The court gave Fisher the remedy he requested, and there is not a substantial likelihood that the State's improper question affected the jury's verdict.
¶56 Fisher next complains about statements that the prosecutor made during closing argument. The prosecutor began his argument with a general reference to the jury's ability to consider the testimony and to assess the witnesses' credibility:
When you look at that, Ty is not competent to come in here and take the stand and explain every little detail of what happened. A two and a half year old. Think about your two and half year old or three and a half year old. How would they do on the stand? They'd be squirming and they wouldn't be able to handle this type of intense cross-examination -
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8 RP at 1107. When defense counsel objected, the court instructed the jury to disregard any argument the law and the evidence did not support and to make its decisions based only on the admitted evidence and the court's instructions.
[12, 13]¶57 Fisher argues that these remarks suggested to the jury that Ty could have testified but that the State was protecting him from defense counsel's cross-examination, even though the prosecutor was fully aware that neither party could have put Ty on the stand. Although the prosecutor committed misconduct by referring to the issue of Ty's competency, which was not discussed during trial, the court instructed the jury to disregard argument evidence or law did not support, and we presume the jury followed the court's instructions. State v. Grisby , 97 Wn.2d 493 , 499, 647 P.2d 6 (1982), cert. denied , 459 U.S. 1211 (1983). Given the court's ruling, we cannot say that the prosecutor's improper argument prejudiced Fisher's right to a fair trial.
[14]¶58 Fisher next complains about the prosecutor's implication that Fisher confessed to Sergeant Nelson. After discussing Fisher's actions in cleaning up the living room and putting Ty to bed in a darkened room, the prosecutor made the following statements:
How else does a guilty man act? They say things like, "What are they going to do to me?" Remember that part of Sgt. Nelson's testimony when he has the defendant on tape and boxed in? He says, "What are they going to do to me? Maybe I should just as well admit it."
8 RP at 1139. Defense counsel objected: "That's not the evidence. Talking about Nelson in that context, that's not the evidence." 8 RP at 1139. The court again instructed the jury to disregard any argument the evidence did not support.
¶59 The record shows that Fisher made an apparent admission to Toews and to her mother, but not to Nelson. In ruling on Fisher's motion for a new trial, the court observed
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that Fisher's admission thus was in evidence and that Fisher could have clarified its context in his own closing argument. The court did not find the misattribution of the statement significant. We agree.
[15]¶60 Finally, Fisher complains that the prosecutor argued that Ty was asleep when his mother came home, thereby showing that Fisher ignored Toews's instructions to keep him awake and was, in effect, trying to kill the child. Defense counsel made no objection when the prosecutor first advanced this theory and argued that Fisher's actions in putting Ty to bed with a head injury demonstrated his culpability. Rather, counsel countered with the argument that Fisher had tried to keep Ty awake and that he was awake when Toews got home. In rebuttal, the State referred to a written statement Toews made:
But her written statement says: "I asked him to wake him up and keep him awake." He was asleep. Why would you ask somebody to wake him up? Why would you ask someone to wake him up if he wasn't out? He was out. You don't ask him to wake him up and keep him awake. An order he didn't follow. If you want to hide somebody, you want them to be asleep and you want them to be in the dark so they can't be seen. That's where you hide a child that's been abused.
8 RP at 1246. Defense counsel objected on the basis that nothing in Toews's statement indicated that Ty was asleep. The court overruled the objection.
¶61 During cross-examination, Toews read from her statement that she had asked Fisher "to wake him up and keep him awake until I got home to take him to the hospital." 5 RP at 757-58. On redirect, she reiterated that she had told Fisher to wake Ty up when she spoke with him on the telephone. Thus, the prosecutor's statement that Ty had been asleep at some point following his injury was a logical inference from the evidence and was not improper. See State v. Stenson , 132 Wn.2d 668 , 727, 940 P.2d 1239 (1997) (prosecutor has wide latitude in closing argument to draw and express reasonable inferences from the evidence), cert. denied , 523 U.S. 1008 (1998). The trial court did not
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err in denying Fisher's motions for a mistrial and/or a new trial based on prosecutorial misconduct.
¶62 Affirmed.\
MORGAN, A.C.J., and HUNT, J., concur.Reconsideration denied June 7, 2005.