State Of Washington, Respondent/cross-appellant v. Chad Christensen, Appellant/cross-respondent ( 2014 )


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  •                                                                                                FILE
    COURT OF APPEAL:
    DIVISION Li
    2014 HAY - 6      Ail 8_ 29
    STATE OF WASHINGTON
    IN THE COURT OF APPEALS OF THE STATE OFBWAS                                                           1N
    UT
    DIVISION II
    STATE OF WASHINGTON,                                                           No. 43745 -7 -II
    Respondent/
    Cross -Appellant.
    v.
    CHAD ERNEST CHRISTENSEN,                                               UNPUBLISHED OPINION
    Appellant/
    Cross -
    Respondent.
    LEE, J. —             Chad Ernest Christensen appeals his conviction of first degree child
    molestation, arguing that he received ineffective assistance of counsel because his attorney failed
    to object when the State elicted testimony concerning the victim' s truthfulness and the fact of his
    arrest and    incarceration. In      a pro se statement of additional grounds (      SAG), Christensen argues
    that his trial attorney also was ineffective in failing -o investigate the victim' s use of a sleeping
    t
    aid and     its   possible   side effects.   The State cross appeals, arguing that the trial court erred in
    concluding that one of Christensen' s prior convictions " washed" and in failing to include it in his
    offender score. Because the State did not elicit inadmissible testimony and because any evidence
    concerning the victim' s use of a sleeping aid was irrelevant, Christensen did not receive
    ineffective       assistance of counsel.     And, because the trial court properly concluded that the State
    failed to   prove     that Christensen   committed    his   current offense   before the   washout period   for the
    No. 43745 -7 -II
    prior conviction expired, it properly calculated his offender score. We affirm the conviction and
    sentence.
    FACTS
    During the summer and fall of 2010, Christensen began a romantic relationship with
    E. C.,   whom     he had known        since childhood.         At the time, Christensen was living with his infant
    daughter in Chehalis,           and   E. C.   and   her four   children were      living   in Vancouver.    E.C. has two
    daughters:        I.B.,   who    was    then 8      years   old,       and   A.B., who is two years older than I.B.
    Christensen and E. C. married on December 11, 2010, and lived with their children in Onalaska.
    Sometime before the wedding, E.C. and her children stayed with Christensen in his
    Chehalis      apartment.      One evening, I.B. and Christensen were in the living room on the couch,
    watching television, when Christensen took I.B.' s hand by the wrist and placed it in his pants so
    that   she   touched   his   penis.   She took her hand out and eventually went to sleep.
    The next morning, A.B. walked into the bathroom and saw I.B. washing her hands.
    When A.B. asked what she was doing, I.B. told her about the touching and said that she was
    washing her hands because              she " could still    feel it." Report      of   Proceedings ( RP) ( June ,14, 2012)
    at 178. A.B. told I.B. that she needed to tell their mother, E. C., what had happened. I.B. told her
    mother that Christensen had taken her hand and placed it in his pants and on his penis.
    Christensen had left the apartment by that time, but when E.C. confronted him later with I.B.' s
    claims, he denied the allegations. E. C. believed Christensen.
    In September 2011, Christensen and E. C. argued over an unrelated issue, and Christensen
    left the home. Christensen told I.B. a few days later that it was her fault that he could not return.
    2
    No. 43745 -7 -II
    When I.B. repeated this to her mother, E.C. decided to report the touching incident to Child
    Protective Services ( CPS).       E.C. and Christensen eventually filed for divorce.
    I.B. was reluctant to speak with the CPS investigator, Keith Sand, at school, so Sand
    arranged for her to speak with investigator Ronnei Jensen at the CPS office. This interview was
    audiotaped while Sand and Lewis County Sheriff' s Detective Tom Callas watched and listened
    through a two -way mirror. When Jensen asked I.B. what she had told her mother, I.B. asked for
    a piece of paper so     that   she could write   it down. I.B. wrote that Christensen " went in bed with
    me and I was pretending to fall asleep and he grabbed my hand and took out his weiner [ sic] and
    made   my hand touch it        and put   it down his   pants."   Ex. 2.   She then talked about the details of
    the incident.   I.B.   gave a consistent    description to her    counselor,   Sandra Ames.   Chehalis Police
    Detective Rick Silva subsequently interviewed Christensen, who admitted being on the couch
    with I.B., but denied that anything inappropriate had occurred.
    The State charged Christensen by amended information with one count of first degree
    child molestation and alleged that he used his position of trust to facilitate the commission of the
    offense.   The charging document stated that the molestation took place between September 12,
    2009, and October 12, 2011.
    Following a pretrial hearing, the trial court concluded that Christensen' s statements to
    Detective Silva were admissible, that I.B. was competent to testify, and that I.B.' s statements to
    her sister, her mother, the two CPS investigators and her mental health counselor were
    admissible as long as she testified.
    3
    No. 43745 -7 -II
    I.B. was the State' s first witness, and her testimony about the incident was consistent
    with   what   she   told her   sister,   mother,   Jensen,     and   Ames.     During her direct testimony, the
    following exchange occurred:
    Q. When you talked to your sister and mom that morning, did you tell them the
    truth about what happened?
    A. Yes.
    Q.    The things you told your counselor Sandra, were those things you told the
    truth?
    A. Yes.
    Q. Were these things you told Ronnei the truth?
    A. Yes.
    RP ( June     14, 2012)   at    180 -81,    187.    I.B.   denied telling anyone that she had lied about
    Christensen, and during cross -examination, she denied telling her aunt and sister that her
    allegations were not true. During I.B.' s redirect examination, this exchange occurred:
    Q. Has anyone ever told you what to say about [ Christensen]?
    A. No. They just say tell the truth.
    Q. Who told you that?
    A. My grandma, my mom and so—
    Q. So you understand when the judge had you raise your right hand, you were
    promising to tell the truth?
    A. Yes.
    Q. You understand that?
    A. Yes.
    Q. Is everything you told us here today the truth?
    A. Yes.
    RP ( June 14, 2012) at 211, 213.
    The CPS investigators        also   testified for the State,   as    did A.B., E. C., Ames, and Detective
    Silva. After questioning Silva about his interview with Christensen, the prosecutor asked about
    Christensen' s arrest:
    4
    No. 43745 -7 -II
    Q. Direct your attention                   to December 7, 2011:             Did you make an arrest of the
    defendant on that day?
    A. Yes, I did. He was taken into custody and booked into the Lewis County jail.
    RP ( June 15, 2012)             at   353 -54.       Silva' s interview with Christensen was published for the jury, as
    was Jensen' s interview with I.B.
    E. C.'   s   sister   testified      for the defense that I.B., A.B., and E. C. had told her that I.B.' s
    allegations        were    false.        Detective Callas testified that E.C. did not initially believe I.B.' s
    allegations, and Christensen' s sister testified that E.C. had told her that Christensen was " going
    to pay" for    leaving her            and    her    children.   RP ( June 15, 2012)         at   363.   Christensen testified that
    E. C.   confronted       him     about      I.B.'   s allegations a   few   weeks     before the    couple married.     He denied
    any inappropriate touching.
    The trial court instructed the jury that to find Christensen guilty, it had to find that he
    committed      the      offense       between September 12, 2009,                   and   October 12, 2011.        The jury found
    Christensen guilty and also found that he had used his position of trust or confidence to facilitate
    the commission of the offense.
    At sentencing, the State noted that there was an issue concerning Christensen' s offender
    score.     Christensen had four                 prior   offenses.      RP 505.       The parties agreed that the first three
    convictions counted for a total of 6 points, but they disagreed about adding 1 point for the fourth
    conviction of second                 degree   unlawful possession of a              firearm.     Christensen was released from
    confinement         for this     class   C    felony    on   July   20, 2006. The applicable washout period expired on
    July 20, 2011, which fell within the charging period for Christensen' s current offense included in
    the information and the " to convict" instruction. The State argued that the evidence showed that
    the     molestation occurred             before Christensen           and   E. C.   married      in 2010   and   before the firearm.
    No. 43745 -7 -II
    conviction washed, but Christensen argued that because the jury did not find that he committed
    his current offense on a specific date before the washout period expired, his firearm conviction
    should       not   count.   The trial   court   agreed   that the firearm   conviction   washed.   Based on an
    offender score of 6, the trial court imposed an underlying sentence of 114 months, plus 18
    months for the aggravator, for a total sentence of 132 months to life. 1
    Christensen appeals his conviction, arguing that he received ineffective assistance of
    counsel.       The State cross appeals Christensen' s sentence, arguing that the trial court erred in
    calculating Christensen' s offender score.
    ANALYSIS
    A. INEFFECTIVE ASSISTANCE OF COUNSEL
    Christensen contends that he received ineffective assistance of counsel because • his
    attorney failed to object when the State elicited testimony from I.B. about her truthfulness as
    well as testimony from Detective Silva about Christensen' s arrest and incarceration. Christensen
    adds in his SAG that his attorney was ineffective because he failed to investigate I.B.' s use of
    melatonin and offer expert testimony about its side effects.
    Whether a defendant received ineffective assistance of counsel is a mixed question of law
    and fact that we review de novo. State v. McLean, 
    178 Wash. App. 236
    , 246, 
    313 P.3d 1181
    , 1186
    2013),   review   denied, 
    179 Wash. 2d 1026
    ( 2014).           To prove ineffective assistance of counsel, a
    defendant must show ( 1) that his counsel' s performance was deficient and (2) that the deficient
    1
    With an offender score of 6, the standard range was 98 -130 months; with a score of 7, the range
    would be 108 -144 months. RCW 9. 94A.510.
    6
    No. 43745 -7 -II
    performance was prejudicial            to defendant'     s   case.    State v. Hendrickson, 
    129 Wash. 2d 61
    , 77 -78,
    
    917 P.2d 563
    ( 1996).          A failure to satisfy either prong is fatal to a claim of ineffective assistance
    of counsel. 
    McLean, 178 Wash. App. at 246
    .
    When determining whether counsel' s performance was deficient, we begin with a strong
    presumption          of counsel' s   effectiveness.     State v. McFarland, 
    127 Wash. 2d 322
    , 335, 
    899 P.2d 1251
    ( 1995).          Counsel' s performance is deficient if it falls below an objective standard of
    reasonableness and cannot            be    characterized as    legitimate trial strategy   or   tactics.   State v. Kyllo,
    
    166 Wash. 2d 856
    , 863, 
    215 P.3d 177
    ( 2009).                           Prejudice occurs when there is a reasonable
    probability that the trial' s result would have differed had the deficient performance not occurred.
    
    Hendrickson, 129 Wash. 2d at 78
    .
    We now apply these standards to Christensen' s three claims of ineffective assistance of
    counsel.
    1.    I.B.' s Truthfulness
    Christensen argues that his attorney should have objected when the State elicited I.B.' s
    testimony that she was telling the truth. He contends that because I.B.' s credibility was the main
    issue   at    trial,   defense counsel was ineffective in failing to object to the prejudicial and
    inadmissible testimony that the State introduced to bolster her credibility.
    To support his claim of error, Christensen cites to cases holding that it is improper for a
    prosecutor      to   ask a witness    to   testify   about   the credibility   of another witness.     See, e. g, State v.
    Jerrels, 83 Wn.          App.    503, 507, 
    925 P.2d 209
    ( 1996) (           misconduct    occurs when prosecutor' s
    cross examination seeks to compel a witness' s opinion as to whether another witness is telling
    the truth); State        v.          Bravo, 72 Wn.
    Suarez -                       App.     359, 366, 
    864 P.2d 426
    ( 1994) (       misconduct
    7
    No. 43745 -7 -II
    occurred when prosecutor repeatedly attempted to get defendant to call the police witnesses
    liars).        Weighing the credibility of the witnesses is the jury' s province; witnesses may not
    express        their   opinions on whether another witness          is telling the truth. State v. Casteneda -
    Perez,
    
    61 Wash. App. 354
    , 360, 
    810 P.2d 74
    , review denied, 
    118 Wash. 2d 1007
    ( 1991).
    In asserting that a witness may not testify about her own credibility, Christensen cites
    State     v.   Reed, 
    102 Wash. 2d 140
    , 
    684 P.2d 699
    ( 1984).                 This case does not support Christensen' s
    assertion. Instead, it stands for the proposition that an attorney may not assert his personal belief
    in the credibility of the witnesses or the accused' s guilt. 
    Reed, 102 Wash. 2d at 145
    -46.
    Christensen cites no authority that directly supports his claim of error, perhaps because it
    is unassailable that a witness may be asked and may testify as to whether her testimony is
    truthful.        Indeed, such a statement is made every time a witness takes the stand and declares
    under oath or affirmation that she will testify truthfully, as required under ER 603.
    Christensen is   correct   that this   case    turned   on   the   victim' s   credibility.    Consequently,
    both      parties questioned      I.B.   about   her veracity.      In addition, defense counsel called witnesses
    who       testified that I.B.     had     recanted    her   allegations,    that E. C.   did not initially believe her
    daughter'        s accusation, and   that   E. C.    wanted   Christensen to " pay" for          leaving     her.   Instead of
    calling attention to I.B.' s assertions of truthfulness by objecting, defense counsel sought to
    undermine          those   assertions with substantive evidence.            Thus, defense counsel' s failure to object
    to the State' s questioning of I.B. can be characterized as a legitimate trial strategy that defeats a
    claim of deficient performance.
    Christensen has failed to cite any authority that establishes I.B .' s testimony about her
    truthfulness was inadmissible. Counsel' s failure to object to evidence cannot prejudice the
    8
    No. 43745 -7 -II
    defendant      unless   the trial   court would    have    ruled   the   evidence   inadmissible. McLean, 178 Wn.
    App.   at   248.    Here, Christensen has failed to show that I.B.' s testimony about her own veracity
    was inadmissible. Accordingly, Christensen' s claim fails.
    2. Christensen' s Arrest and Incarceration
    Christensen next argues that Detective Silva' s testimony about arresting him and taking
    him to jail constituted improper opinion testimony as to Christensen' s guilt. Christensen cites to
    no authority supporting his contention that the fact of arrest is categorically inadmissible.
    We recently rejected a similar claim after observing that the defendant had cited no
    authority stating that the fact           of an arrest   is categorically inadmissible.        
    McLean, 178 Wash. App. at 249
    .    We also distinguished the same two cases on which Christensen relies to support his
    claim of error. 
    McLean, 178 Wash. App. at 249
    ( citing Warren v. Hart, 
    71 Wash. 2d 512
    , 
    429 P.2d 873
    ( 1967);       State v. Carlin, 
    40 Wash. App. 698
    , 703, 
    700 P.2d 323
    ( 1985)).
    In Carlin, a police officer testified that a police dog followed a " fresh guilt scent" from
    the   scene of a      burglary    to the defendant.       40 Wn.     App.   at   703.   We observed in McLean that
    stating that a defendant emitted an objectively ascertainable " guilt scent" was not comparable to
    stating the fact      of an 
    arrest. 178 Wash. App. at 249
    .
    In Warren, defense counsel argued that the jury should find that a driver was not
    negligent because police officers decided not to issue a traffic citation at the scene of a car
    
    accident. 71 Wash. 2d at 517
    .    As we observed in McLean, the Warren case says nothing about
    admitting     evidence    showing the fact       of a criminal     defendant'    s 
    arrest. 178 Wash. App. at 249
    .
    The fact that Detective Silva added that he took Christensen to jail following his arrest
    does not alter our conclusion that Carlin and Warren do not support a claim of deficient.
    9
    No. 43745 -7 -II
    performance.       Nor does the timing   of   this   testimony influence   our    decision. Christensen argues
    that the question concerning his arrest deliberately came at the culmination of the detective' s
    testimony, but this argument overlooks the fact that the prosecutor recalled the detective for
    additional questions that had nothing to do with the fact of arrest or incarceration.
    Here, as in McLean, withholding an objection can be characterized as a legitimate trial
    tactic that sought to avoid emphasizing the fact of Christensen' s arrest and incarceration.
    Furthermore, having failed to establish that this evidence was inadmissible, Christensen again
    cannot show prejudice. Christensen' s claim of ineffective assistance of counsel fails.
    3.    Failure to Investigate and Hire Expert
    Finally, Christensen argues in his SAG that he received ineffective assistance of counsel
    when his attorney failed to interview the State' s witnesses about the melatonin that I.B. was
    taking as a sleeping aid at the time of the incident and failed to hire a medical expert to testify
    about its side effects.
    During E.C.' s cross -examination, defense counsel asked about I.B.' s sleeping habits and
    whether       E. C. had found it necessary to   give   I.B. any type   of pill.   After the State objected, the
    trial court excused the jury, and defense counsel explained that he was referring to E.C. giving
    her daughters melatonin for sleep issues, which might have some bearing on the possibility of
    dreams    or    nightmares.   Defense counsel had no medical testimony about the side effects of
    melatonin to offer, but he planned to have Christensen' s mother testify that melatonin gives her
    nightmares.       The trial court explained that any evidence that witnesses take melatonin and have
    nightmares would not be admissible absent expert testimony explaining that melatonin causes
    nightmares, but it permitted an offer of proof on the issue.
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    No. 43745 -7 -II
    Defense   counsel      then   asked    E. C.    about   giving I.B.      melatonin.       She replied that she
    occasionally      gives   her    children melatonin without           it   having   any   adverse    effect on   them.   E. C.
    could not remember giving I.B. melatonin the night before I.B. made her allegations against
    Christensen.       Following this offer of proof, the trial court excluded the melatonin evidence as
    irrelevant because there was no evidence that I.B. took melatonin the night before the alleged
    incident, no evidence that she was asleep at the time of the incident, and no expert testimony
    about melatonin' s        side   effects.     Our record does not disclose the scope of defense counsel' s
    pretrial   investigation into I.B.'      s melatonin use.          Because our review is limited to the appellate
    record, we decline to consider the issue of whether counsel was ineffective in failing to interview
    the State'    s witnesses about      I.B.'   s melatonin use.      State v. Crane, 
    116 Wash. 2d 315
    , 335, 
    804 P.2d 10
    ,   cent.   denied, 
    501 U.S. 1237
    ( 1991).             Furthermore, given the lack of evidence that I.B. used
    melatonin the night before she made her allegations, the failure to introduce expert testimony on
    the   side effects of melatonin was neither               deficient   nor prejudicial.      Accordingly, Christensen' s
    claim fails.
    B. OFFENDER SCORE
    The State argues on cross appeal that the trial court erred in concluding that Christensen' s
    prior conviction for unlawful possession of a firearm washed for the purpose of calculating his
    offender score and standard           sentencing     range and        that resentencing is     required.    When a direct
    appeal shows that an incorrect offender score was used to calculate the standard range,
    resentencing is required even where the trial court imposed an exceptional sentence, unless the
    record     clearly indicates that the sentencing           court would      have imposed the        same sentence   anyway.
    No. 43745 -7 -II
    State   v.   Ford, 
    137 Wash. 2d 472
    , 485, 
    973 P.2d 452
    ( 1999); State v. Parker, 
    132 Wash. 2d 182
    , 189,
    
    937 P.2d 575
    ( 1997).
    Christensen' s prior conviction for second degree unlawful possession of a firearm is a
    class    C    felony.      RCW 9. 41. 040( 2)( b).       Under the      Sentencing        Reform Act ( SRA), this prior
    conviction "      shall not be included in the offender score if, since the last date of release from
    confinement . . .           the offender    ha[ s]   spent five consecutive years in the community without
    committing any             crime   that subsequently       results    in     a   conviction."       RCW 9. 94A. 525( 2)( c).
    Christensen        was     released   from    confinement      for the firearm            conviction    on    July    20, 2006.
    Consequently,        the five -
    year     washout period expired on             July   20, 2011.   Christensen was charged
    with committing his current offense between September 12, 2009, and October 12, 2011.
    The State argued below, as it does on appeal, that the testimony showed that the touching
    incident occurred before E. C. and Christensen married on December 11, 2010, which was before
    the    five -
    year   washout period expired.              Defense counsel responded that the State never sought,
    and the jury never made, any finding that the offense occurred on a specific date before the
    washout        period    expired,   and   that the firearm      conviction          had   washed.     The trial court ruled
    without explanation that the offense washed.
    In addressing the State' s argument, we find guidance in Parker, 
    132 Wash. 2d 182
    .2 In
    Parker, the defendant was charged with committing two different crimes within a five -
    year
    2
    Christensen      asserts   that the   State is equitably estopped from raising this               argument.        We reject
    this    assertion,   particularly     where   the State has clearly preserved its claim               of error.      See State v.
    Yates, 
    161 Wash. 2d 714
    , 738, 
    168 P.3d 359
    ( 2007) (                      declining to apply equitable estoppel after
    observing that        no    Washington     case   has   extended     it to   criminal prosecutions),         cert. denied, 
    554 U.S. 922
    ( 2008).           Equitable estoppel requires a statement inconsistent with the claim later
    12
    No. 43745 -7 -II
    
    period. 132 Wash. 2d at 185
    .     During the fourth year of the charging period, the legislature
    amended        the SRA to significantly increase the                 standard ranges             for the   charged crimes.    
    Parker, 132 Wash. 2d at 185
    .   At trial, evidence was presented that the defendant committed the acts
    throughout the charging             period.        
    Parker, 132 Wash. 2d at 185
    .    During closing, the prosecutor
    urged the jury to consider the entire charging period; the jury was not asked to specify whether
    the   defendant        committed    the    acts after   the    effective         date     of   the penalty    increase.   
    Parker, 132 Wash. 2d at 185
    .     The Supreme Court agreed with the defendant that the trial court erred by using
    the increased penalties without requiring the State to prove that the crimes occurred after those
    penalties      became      effective.      
    Parker, 132 Wash. 2d at 191
    . "[    W] hen the crime was committed is a
    factual   question which must           be   put   to the   jury."   
    Parker, 132 Wash. 2d at 192
    , n. 14.
    Christensen' s jury was not asked to specify whether he molested I.B. before the five -
    year
    washout period expired.              Rather, the "      to convict" instruction required the jury to find that he
    committed       the    offense within a      timeframe that          straddled           the   washout     date.   During closing, the
    prosecutor discussed the other elements of the crime and then urged the jury to consider the
    entire   charging       period: "   that leaves element number 1, that on or about and between September
    12, 2009       and     October 12, 2011 — big time            net —   basically from when she turned eight up to the
    time it got reported, so we know we' re in that time, the defendant had sexual contact with [ I.B.]."
    RP ( June 18, 2012) at 475.
    asserted, action by the other party in reliance on that statement, and an injury to that other party
    resulting from allowing the first party to repudiate that statement. 
    Yates, 161 Wash. 2d at 737
    -38.
    The application of equitable estoppel against the government is disfavored. 
    Yates, 161 Wash. 2d at 738
    .
    13
    No. 43745 -7 -I1
    In determining a defendant' s sentence, the trial court may consider information that has
    been   admitted, acknowledged or proved   in   a   trial. RCW 9. 94A.530( 2).   The State points out that
    uncontroverted evidence shows that Christensen committed the molestation before the washout
    period for his prior firearm conviction expired. Given the absence of a jury finding on this issue,
    however, we see no proof that Christensen committed his current offense before his firearm
    conviction washed out.    Consequently, we affirm the trial court' s calculation of the offender
    score and the resulting standard range.
    We affirm.
    A majority of the panel having determined that this opinion will not be printed in the Washington
    Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so
    ordered.
    We concur:
    14