[No. 37828-1-II. Division Two. April 13, 2010.]
December 3, 2009, Oral Argument
Casey Grannis (of Nielsen, Broman & Koch, PLLC), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Melody M. Crick, Deputy, for respondent.
¶1 PENOYAR, A.C.J. -- Loni Venegas appeals her convictions of first degree assault of a child (count I) and two counts of second degree assault of a child (counts II and III) for assaulting JV, FACTS I. BACKGROUND ¶2 In 2001, when JV was six years old, his mother died in a car accident. JV went to live with his grandfather, Remil Venegas, and his wife, Loni Venegas. ¶3 The State charged Venegas with first degree assault of a child (count I) A person eighteen years of age or older is guilty of the crime of assault of a child in the second degree if the child is under the age of thirteen and the person . . . [c]ommits the crime of assault in the second degree, as defined in RCW 9A.36.021, against a child . . . . The relevant part of RCW 9A.36.021 states, "A person is guilty of assault in the second degree if he or she, under circumstances not amounting to assault in the first degree . . . [i]ntentionally assaults another and thereby recklessly inflicts substantial bodily harm." The legislature's 2003 and 2007 amendments to RCW 9A.36.021 do not affect the present analysis. See LAWS OF 2007, ch. 79, $ 2; LAWS OF 2003, ch. 53, $ 64.» II. TRIAL ¶4 Venegas's six-week trial began on April 21, 2008. The State's witnesses testified consistent with the following facts. A. FACTS PERTAINING TO FIRST DEGREE ASSAULT OF A CHILD (COUNT I) 1. Substantial Bodily Harm ¶5 On June 25, 2007, JV ran away from home. JV testified that he ran away because Remil and Venegas beat him after somebody knocked over the leaf blower that JV had placed in the garage. 2. "Pattern or Practice" of Assault ¶6 At trial, JV testified as follows to abuse by Venegas over many years. Venegas frequently beat JV with a stick, leaving bruises, welts, cuts, and injuries that sometimes caused him to limp. She punched his face, leaving bruises and fat lips. She kicked his legs, testicles, and stomach when he did not complete his chores to Venegas's liking. If he did not scrub the bathtub correctly, Venegas turned on burning hot water with JV in the tub. Once, the hot water blistered JV's feet, which left the skin on his right foot looking "different." 12 RP at 1332. Venegas hit JV's feet with a hammer, leaving bruises and cuts. On one occasion, she scraped the backs of JV's legs with a metal fork and poured vinegar into the wounds. Another time, she forced him to repeatedly "belly flop" into the pool even after he had bloodied his nose by doing so. 11 RP at 1317. JV had to stay home from school and do chores if he had bruises or other marks. ¶7 Several of JV's teachers at Collins Elementary School and Ford Middle School observed JV's injuries and notified CPS. On September 23, 2003, JV's third grade teacher noticed a bruise on JV's cheek. She called CPS in January 2004 after noticing a lip abrasion and a bruise on his shoulder. Another teacher made two separate reports to CPS in September 2004 after various teachers had noticed bruises on JV's face and a cut lip. On September 26, 2005, JV's fifth grade teacher reported a "purple bruise" on JV's eye. 4 RP at 246. On March 1, 2006, the same teacher reported another bruise. In February 2007, JV's sixth grade language arts teacher observed bruises on his cheeks. She also noticed injuries on other occasions and contacted CPS. JV testified that he always gave his teachers excuses, which Venegas provided, for how the injuries had occurred. ¶8 Other witnesses also observed JV's injuries. In the summer of 2005, AC, Remil's biological daughter, noticed that JV had bruises and cuts. Once, after JV did not finish his chores, Venegas ordered him downstairs. AC heard a sound like the "twirl [of] a bat" and noticed red marks on JV's hands when he came upstairs. 4 RP at 206. KP, who is AC's cousin, testified that during that same time period, she saw Venegas slam JV's face into the pool table "about seven times," causing his chin and mouth to bleed. 6 RP at 597. Venegas's 10-year old son DV saw Venegas punch JV in the arm "once or twice." B. FACTS PERTAINING TO SECOND DEGREE ASSAULT OF A CHILD (COUNT II) ¶9 JV testified that, on February 28, 2007, Venegas would not let him use the bathroom while he was unloading the dishwasher. He accidentally urinated, and Venegas forced him to clean up his urine by mopping it up with his clothes while still wearing them. Venegas then "stomp[ed]" on JV's head "[m]ore than one time," which opened a cut on his chin. 11 RP at 1289-90. Venegas's son DV heard a "big bang, thump, on the ground, just like a stomp" from a nearby room. 15 RP at 1764. After the incident, Venegas took JV to see Dr. Douglas Attig, the family physician. ¶10 Dr. Attig closed JV's cut, which was 2.75 centimeters in length, with approximately 12 stitches. JV told Dr. Attig that he had cut his chin after slipping on water in the kitchen and hitting his chin on either the floor or counter. JV testified that Venegas told him to tell Dr. Attig this story. JV provided similar explanations to sixth grade teachers who asked about the stitches. C. FACTS PERTAINING TO SECOND DEGREE ASSAULT OF A CHILD (COUNT III) ¶11 JV testified that, on another occasion, ¶12 On March 23, 2007, JV's sixth grade shop teacher asked JV about bruising on his face from "the top of his forehead down to his chin." 7 RP at 670. The teacher stated, "It . . . just didn't add up to see an 11-year-old with his face bruised as [badly] as his was." 7 RP at 667. JV had bruises on his face in the shape of somebody's knuckles. JV gave him an explanation for the injury, which the shop teacher accepted. Three days later, JV's language arts teacher noticed a yellow bruise on JV's face right above a missing right molar. Later, the shop teacher told JV that he did not believe JV's earlier explanation, and JV told him that Venegas had injured him. The shop teacher called CPS. D. "OTHER ACTS" TESTIMONY ¶13 At trial, Katherine Trezise, JV's third grade teacher, testified that although she recommended JV for the school's gifted program, "Mrs. Venegas said she did not want [JV] to be in the gifted program because he didn't know his multiplication and division facts." 9B RP at 1000. Earlier, the trial court had denied Venegas's motion in limine to exclude this evidence as irrelevant and inadmissible under ER 403. The trial court stated, "I am going to deny [Venegas's] motion in limine, weighing both sides of the issue . . . . I think it's admissible because of what the State's theory is, that there's a motivation, that there's a pattern for what they are accusing [Venegas] of." 9A RP at 919-20. ¶14 Heather Hasse, a CPS investigator, testified that CPS planned to place JV in foster care on July 9, 2007, about two weeks after he ran away from home. Hasse called the Venegas household to ask them to sign the relevant paperwork. In the background, Hasse heard Venegas ask Remil whether they would have to pay for JV's foster care. Venegas told Remil that she wanted CPS to put in writing that she and Remil would not have to pay for JV's foster care. The investigator testified that Venegas sounded angry during this exchange. ¶15 Before Hasse testified about Venegas's statement, Venegas objected to this evidence as irrelevant and inadmissible under ER 403. The State argued that the testimony was relevant because [Venegas] hasn't expressed any concern over the child, she is clearly angry about money [and] the State's theory is, despite her significant distaste for this child, she continues to keep him in their house [which] is motivated by money. . . . So, when [JV] becomes a financial burden upon her, she is upset. She's furious. 7 RP at 756. The trial court overruled the objection, finding that the evidence was admissible because "instead of getting money, ¶16 Additionally, the State presented testimony, sometimes without defense objection, that Venegas (1) treated JV differently than her other children on their birthdays; (2) took away gifts from JV; (3) did not allow JV to attend his best friend's birthday party; (4) did not allow JV to eat with the family; (5) forced JV to rewrite a poem about his mother's death; (6) did not allow JV to play with toys and required him to do more chores than the other children while receiving fewer privileges; (7) restricted contact between JV and his best friend and eventually forbid JV's friends from visiting the house; (8) repeatedly called JV a "[d]umb ass, dumb fuck, fuck-up, asshole, shithead, faggot" and "bad," "useless," "slow," and "stupid"; (9) used profanity around her children; E. DEFENSE'S CASE ¶17 According to the defense, JV fabricated the abuse allegations. Venegas testified that she loved JV like a son and that she never hurt him. The defense introduced numerous photographs and videos to show that JV participated in family and childhood activities. The defense also argued that JV's abuse allegations were inspired by two books that he had read, in which the child suffered similar forms of punishment. 1. JV's Injuries ¶18 Venegas testified that JV's injuries stemmed from fights with other children, wrestling, throwing snowballs, and falling down the stairs. According to Venegas, JV told her that he obtained the injuries to his face and tooth--the basis of count III--by playing "smear the queer" with neighborhood kids. 23 RP at 2788. JAV testified that she never saw Venegas hit JV. Venegas and JAV testified that JV began to act strangely around fifth grade, becoming more aggressive, starving the dog, purposefully injuring himself, and storing bottles of urine in the refrigerator. An 11-year old neighbor, CC, testified that JV always got into fights but told everyone that Venegas beat him up. 2. Expert Testimony ¶19 At trial, Dr. Douglas Attig, the Venegas family's physician, testified for the defense. On May 15, 2008, the scheduled day of his testimony, the State noted that it had "just interviewed" Dr. Attig and stated that he "was endorsed as a fact witness." 18 RP at 2020. The State objected to allowing Dr. Attig to offer "any expert opinions" about whether JV's injury could have been caused in the manner that JV described. 18 RP at 2020. The State told the trial court that it had not received notice that Dr. Attig would be offering an expert opinion. I'm going to sustain the objection . . . . [I]t's not fair to have the [State] not have the opportunity to cross-examine an expert who has been endorsed as a fact witness. They don't have the opportunity to call another doctor with reference to the cause of the injury. I don't think it's within the rules of evidence. This is a fact witness, happens to be a physician who will testify as to what he did in treating, but not how it was caused. 18 RP at 2022-23. Defense counsel proposed that the trial court "allow the State an opportunity to interview [Dr. Attig]" as an alternative to excluding his testimony. 18 RP at 2023. The trial court replied, "[An] [i]nterview is not going to get it done. [The State has] to get another expert. They have to be prepared how to cross-examine your expert, and I am not going to take that time now in the middle of the trial." 18 RP at 2023. ¶20 After the trial court's ruling, the defense made an offer of proof outside the jury's presence. Dr. Attig described his qualifications and testified that he treated JV for a "[c]hin laceration" on February 28, 2007. 18 RP at 2028. JV told Dr. Attig that he had slipped on the kitchen floor and struck his chin on the floor, but JV had no bruises on his head or neck and did not report head or neck pain. Defense counsel then asked the following questions: Q: If the boy said that he received the injury by lying down on the floor, on his stomach, with his chin next to the ground, and that his head was slammed into the floor with a foot of another person, in the back of the head, do you have an opinion to a reasonable medical certainty as to whether or not the injury you saw was consistent with that causation? A: The injury I saw possibly could be due to that, but I -- it's highly unlikely without other, you know, collateral damage . . . . Q: Do you have an opinion to a reasonable medical certainty as to whether or not the injury that you saw was caused by [JV] being stomped [on] the back of the head? A: Yes, I have an opinion, and I don't think he was. Q: Do you hold that opinion to a reasonable medical certainty? A: Yes. 18 RP at 2030-31. After the jury was brought back in, Dr. Attig testified that JV had no other injuries to his face and that his chin laceration was consistent with slipping and hitting his chin on the floor. F. STATE'S CLOSING ARGUMENT ¶21 During closing argument, the prosecutor stated, "In order to find the defendant not guilty, you have to say to yourselves: 'I doubt the defendant is guilty, and my reason is' -- blank." 27A RP at 3286. The defense did not object to this statement. ¶22 The prosecutor [State]: Counsel says the defendant is presumed innocent and that the State bears the burden of proof and she's absolutely right. The defendant is presumed innocent and the State does bear the burden. We bear that burden gladly, but that presumption of innocence, ladies and gentlemen, that presumption erodes each and every time you hear evidence that the defendant is guilty. [Defense]: I object. That's a misstatement of the law. The Court: It's argument. I'll allow it. [State]: Every single time that evidence is presented that the defendant is guilty as charged, then that presumption erodes little by little, bit by bit, and at the conclusion of all the evidence, including the defendant's witnesses and the defendant, herself, and that presumption no longer exists, then that's when the State has proven the case beyond a reasonable doubt . . . . 27B RP at 3354-55. ¶23 On June 6, 2008, the jury convicted Venegas on all counts. Venegas appeals. ANALYSIS CUMULATIVE ERROR ¶24 Venegas argues that cumulative error prevented her from receiving a fair trial. She contends that the trial court improperly excluded Dr. Attig's expert testimony and improperly admitted two pieces of ER 404(b) "other acts" evidence. We agree that the trial court erred in both of these instances. Venegas also asserts, and we agree, that the prosecutor committed misconduct during closing argument. Therefore, we find that cumulative error denied Venegas her right to a fair trial. A. STANDARD OF REVIEW [1] ¶25 Under the cumulative error doctrine, we may reverse a defendant's conviction when the combined effect of errors during trial effectively denied the defendant her right to a fair trial, even if each error standing alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149 P.3d 646 (2006); State v. Hodges, 118 Wn. App. 668, 673-74, 77 P.3d 375 (2003). The doctrine does not apply where the errors are few and have little or no effect on the trial's outcome. See Weber, 159 Wn.2d at 279. B. EXPERT TESTIMONY ¶26 Venegas first argues that the trial court imposed an unjust CrR 4.7(h)(7) discovery sanction by preventing Dr. Attig's testimony that he believed to a reasonable medical certainty that JV's chin laceration could not have been caused by a stomp to the head. We agree. [2] ¶27 Discovery decisions based on CrR 4.7 are within the trial court's sound discretion. State v. Hutchinson, 135 Wn.2d 863, 882, 959 P.2d 1061 (1998). A trial court abuses its discretion when it makes decisions based on untenable grounds or for untenable reasons. State v. Foxhoven, 161 Wn.2d 168, 174, 163 P.3d 786 (2007) (quoting State v. Vy Thang, 145 Wn.2d 630, 642, 41 P.3d 1159 (2002)). [3, 4] ¶28 Venegas initially argues that the State knew that Dr. Attig would testify and, therefore, CrR 4.7(b)(1) did not require her to inform the State that she planned to have Dr. Attig testify as to causation. This argument fails. CrR 4.7(b)(1) states: [T]he defendant shall disclose to the prosecuting attorney the following material and information within the defendant's control no later than the omnibus hearing: the names and addresses of persons whom the defendant intends to call as witnesses at the hearing or trial, together with any written or recorded statements and the substance of any oral statements of such witness. (Emphasis added.) The rule clearly required Venegas to inform the State of the "substance" of Dr. Attig's expected oral statements at trial. CrR 4.7(b)(1); see also State v. Greiff, 141 Wn.2d 910, 919, 10 P.3d 390 (2000) (finding that the State violated its analogous discovery obligations under CrR 4.7(a)(1) by neglecting to inform defense counsel that a witness's testimony would differ in substance from his testimony at a prior proceeding). Here, the State believed that Dr. Attig would only testify about JV's treatment. Venegas violated CrR 4.7(b)(1) by not informing the State that Dr. Attig would also testify as to causation. [5] ¶29 Next, Venegas argues that the trial court's decision to exclude Dr. Attig's testimony on causation was an unjust CrR 4.7(h)(7) discovery sanction. That rule reads in pertinent part: [I]f . . . a party has failed to comply with an applicable discovery rule . . . , the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances. CrR 4.7(h)(7)(i). The "deems just" language gives a trial court discretion to exclude a defense witness as a sanction for a discovery violation. Hutchinson, 135 Wn.2d at 881-84 (quoting CrR 4.7(h)(7)(i)). Excluding evidence is an "extraordinary remedy" under CrR 4.7(h) that "should be applied narrowly." Hutchinson, 135 Wn.2d at 882. ¶30 The Hutchinson court identified four factors that a trial court should consider when determining whether to exclude evidence as a sanction for a discovery violation. 135 Wn.2d at 882-83 (citing Taylor v. Illinois, 484 U.S. 400, 415 n.19, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988)). The trial court should weigh (1) the effectiveness of less severe sanctions, (2) the impact of witness preclusion on the evidence at trial and the outcome of the case, (3) the extent to which the witness's testimony will surprise or prejudice the State, and (4) whether the violation was willful or in bad faith. Hutchinson, 135 Wn.2d at 882-83. [6] ¶31 Here, the trial court placed decisive emphasis on the third Hutchinson factor. It noted that Dr. Attig's proposed causation testimony had surprised the State, which would have to locate a medical expert midtrial to rebut Dr. Attig's testimony. The trial court concluded, "I am not going to take that time now in the middle of the trial." 18 RP at 2023. ¶32 The other three Hutchinson factors do not support the "extraordinary remedy" of exclusion here. Hutchinson, 135 Wn.2d at 882. First, the trial lasted over three more weeks after Dr. Attig testified. Therefore, postponing Dr. Attig's testimony until the State could locate an expert could have served as an effective, less severe sanction to prevent prejudicial surprise to the State. See, e.g., Hutchinson, 135 Wn.2d at 881 (stating that a party's failure to identify witnesses in a timely manner is "appropriately remedied" by continuing trial to give the nonviolating party time to interview the new witness). Second, excluding Dr. Attig's causation testimony strongly undermined Venegas's defense on count II. In contrast to counts I and III, the State presented no clear evidence that corroborated JV's testimony about how he cut his chin. Had the jury heard from Dr. Attig that it was highly unlikely that JV's injury occurred as JV described it, the jury may well have disbelieved JV's testimony. Finally, defense counsel's discovery violation appeared to be an oversight rather than a willful or bad faith violation. ¶33 In sum, we find that the trial court's rationale for excluding Dr. Attig's testimony C. PROSECUTORIAL MISCONDUCT [7-10] ¶34 Venegas alleges that the prosecutor committed "misconduct" by misstating the law on the presumption of innocence. Appellant's Br. at 48. "The presumption of innocence is the bedrock upon which the criminal justice system stands." State v. Bennett, 161 Wn.2d 303, 315, 165 P.3d 1241 (2007). We find that the prosecutor committed flagrant misconduct. ¶35 During closing argument, the prosecutor stated, "In order to find the defendant not guilty, you have to say to yourselves: 'I doubt the defendant is guilty, and my reason is' -- blank." The jury need not engage in any such thought process. By implying that the jury had to find a reason in order to find [the defendant] not guilty, the prosecutor made it seem as though the jury had to find [the defendant] guilty unless it could come up with a reason not to. Because we begin with a presumption of innocence, this implication that the jury had an initial affirmative duty to convict was improper. Furthermore, this argument implied that [the defendant] was responsible for supplying such a reason to the jury in order to avoid conviction. State v. Anderson, 153 Wn. App. 417, 431, 220 P.3d 1273 (2009). We reiterate that prosecutors who continue to employ an improper "fill-in-the-blank" argument needlessly risk reversal of their convictions. ¶36 Later, in rebuttal argument, the prosecutor stated: The defendant is presumed innocent and the State does bear the burden. We bear that burden gladly, but that presumption of innocence . . . erodes each and every time you hear evidence that the defendant is guilty . . . . Every single time that evidence is presented that the defendant is guilty as charged, then that presumption erodes little by little, bit by bit, and at the conclusion of all of the evidence, including the defendant's witnesses and the defendant, herself, and that presumption no longer exists, then that's when the State has proven the case beyond a reasonable doubt. 27B RP at 3354-55. This is also a clear misstatement of the law. The presumption of innocence continues "throughout the entire trial" and may be overcome, if at all, only during the jury's deliberations. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 4.01, at 85 (3d ed. 2008) (WPIC); Bennett, 161 Wn.2d at 317-18 (mandating the use of WPIC 4.01 in every criminal case, as was done here). The "bedrock upon which [our] criminal justice system stands" does not erode simply because the State presents witnesses that support its theory of the case. Bennett, 161 Wn.2d at 315. The prosecutor committed flagrant misconduct by repeatedly attacking Venegas's presumption of innocence with improper arguments that had no basis in law. D. ER 404(B) "OTHER ACTS" EVIDENCE ¶37 Venegas contends that the trial court improperly admitted two pieces of "other acts" evidence under ER 404(b) over defense objection: (1) Venegas's statements that she did not want JV in his school's gifted program and (2) Venegas's statements that she did not want to pay for JV's foster care. We find that the trial court erred by failing to weigh the probative value of this ER 404(b) evidence against its prejudicial effect on the record. [11] ¶38 ER 404(b) prohibits a trial court from admitting "[e]vidence of other crimes, wrongs, or acts [12, 13] ¶39 We review a trial court's decision to admit evidence under ER 404(b) for abuse of discretion. Fisher, 165 Wn.2d at 745. Failure to adhere to the requirements of an evidentiary rule can be an abuse of discretion. Foxhoven, 161 Wn.2d at 174. [14, 15] ¶40 In admitting the gifted program testimony, the trial court identified a permissible ER 404(b) purpose--proof of motive [16] ¶41 The trial court also acted beyond its discretion by permitting Hasse, the CPS investigator, to testify that Venegas appeared upset and angry about having to pay for JV's foster care. The trial court failed to articulate a proper purpose for this testimony under ER 404(b), and again it did not balance the evidence's probative value against its prejudicial effect on the record. On this record, this evidence also should have been excluded. ¶42 We conclude that the accumulation of errors discussed above is of sufficient magnitude that reversal is necessary. In order to find the defendant not guilty, you have to say to yourselves: "I doubt the defendant is guilty, and my reason is" -- blank. 27A RP at 3286. Every single time that evidence is presented that the defendant is guilty as charged, then that presumption erodes little by little, bit by bit, and at the conclusion of all of the evidence, including the defendant's witnesses and the defendant, herself, and that presumption no longer exists, then that's when the State has proven the case beyond a reasonable doubt. 27B RP at 3354-55.» ¶43 We reverse. BRIDGEWATER and ARMSTRONG, JJ., concur.