State Of Washington v. Marc Grubb, Jr. ( 2017 )

Filed
Washington State
Court of Appeals
Division Two
October 31, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49658-5-II
Respondent,
v.
MARC ANTHONY GRUBB, JR., UNPUBLISHED OPINION
Appellant.
LEE, J. – Marc Anthony Grubb Jr. appeals from his juvenile court disposition order finding
him guilty of attempted first degree rape of a child and first degree child molestation. Grubb’s
court-appointed attorney has filed a motion to withdraw on the ground that there is no basis for a
good faith argument on review. We grant the motion to withdraw and dismiss the appeal.
Pursuant to State v. Theobald, 78 Wash. 2d 184, 185, 470 P.2d 188 (1970), and Anders v.
California, 386 U.S. 738, 744, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967), the motion to withdraw
must
“be accompanied by a brief referring to anything in the record that might arguably
support the appeal. A copy of counsel’s brief should be furnished the indigent and
time allowed him to raise any points that he chooses; the court-not counsel-then
proceeds, after a full examination of all the proceedings, to decide whether the
case is wholly frivolous.”
No. 49658-5-II
State v. Hairston, 133 Wash. 2d 534, 538, 946 P.2d 397 (1997) (quoting Anders, 386 U.S. at 744).
This procedure has been followed.1 Grubb’s counsel on appeal filed a brief with the motion to
withdraw. Grubb was served with a copy of the brief and informed of his right to file a statement
of additional grounds for review.
The material facts are accurately set forth in counsel’s brief in support of the motion to
withdraw. We have reviewed the briefs filed in this court and have independently reviewed the
entire record. We specifically considered the following potential issues raised by counsel:
1. Whether appellate counsel provided ineffective assistance by failing to request
a continuance when the State requested to amend the information.
2. Whether the trial court erred in admitting child hearsay.
3. Whether the trial court erred in admitting Grubb’s statement to police.
4. Whether convictions for first degree rape of a child and first degree child
molestation violate double jeopardy.
First, to establish ineffective assistance of counsel, Grubb must demonstrate both that
defense counsel’s representation was deficient and that the deficient representation prejudiced him.
State v. McFarland, 127 Wash. 2d 322, 334-35, 899 P.2d 1251 (1995). Here, the State filed an
amended information on September 6, 2016 that added a first degree child molestation charge.
Trial commenced on September 6, 2016 and then recessed until September 20. Defense counsel
stated on the record that he was prepared to proceed to trial. Our record shows defense counsel
1
Relying on State v. Folden, 53 Wash. App. 426, 427-28, 767 P.2d 589, review denied, 112 Wash. 2d
1022 (1989) and State v. Rolax, 104 Wash. 2d 129, 135-36, 702 P.2d 1185 (1985), the State argues
there is an additional step that defense counsel must take when filing an Anders brief. These cases,
however, concern steps necessary when there is a motion on the merits. This case is not being
decided as a motion on the merits.
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No. 49658-5-II
was prepared to cross-examine the State’s witnesses, objected at appropriate times, called defense
witnesses, and made closing remarks. There is no showing of deficient performance or prejudice
to support an ineffective assistance of counsel claim.
Second, we review the trial court’s decision to admit child hearsay evidence for an abuse
of discretion. State v. Borboa, 157 Wash. 2d 108, 121, 135 P.3d 469 (2006). State v. Ryan, 103
Wash. 2d 165, 175-76, 691 P.2d 197 (1984) provides nine factors to guide our analysis in assessing
the reliability of the child’s out-of-court statement. The Ryan factors are the following:
“(1) [W]hether there is an apparent motive to lie; (2) the general character of the
declarant; (3) whether more than one person heard the statements; (4) whether the
statements were made spontaneously; . . . (5) the timing of the declaration and the
relationship between the declarant and the witness”[;] . . . [(6)] the [lack of any]
express assertion about past fact[; (7) whether] cross-examination could not show
the declarant's lack of knowledge[; (8) whether] the possibility of the declarant's
faulty recollection is remote[; and (9) whether] the circumstances surrounding the
statement . . . are such that there is no reason to suppose the declarant
misrepresented defendant's involvement.[2]
Id. (quoting State v. Parris, 98 Wash. 2d 140, 146, 654 P.2d 77 (1982) and citing Dutton v. Evans,
400 U.S. 74, 88-89, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970)). Not every factor needs to be met for
a statement to be sufficiently reliable; the factors need only be “‘substantially met.’” State v.
Woods, 154 Wash. 2d 613, 623-24, 114 P.3d 1174 (2005) (quoting State v. Swan, 114 Wash. 2d 613,
652, 790 P.2d 610 (1990), cert. denied, 498 U.S. 1046 (1991)).
2
Factors six and seven no longer apply. See State v. Leavitt, 111 Wash. 2d 66, 75, 758 P.2d 982
(1988) (every statement a child makes concerning sexual abuse will be a statement relating a past
fact.); State v. Stange, 53 Wash. App. 638, 647, 769 P.2d 873, review denied, 113 Wash. 2d 1007 (1989)
(cross-examination could in every case possibly show error in the child hearsay statement).
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No. 49658-5-II
Here, the trial court went through each Ryan factor and found each one was met. Tenable
grounds, therefore, support the trial court’s ruling to allow child hearsay evidence. Thus, there
was no abuse of discretion.
Third, we review the trial court’s decision to admit Grubb’s statement by reviewing the
trial court’s CrR 3.5 findings of fact for substantial evidence and review de novo whether the
findings support the conclusions of law. State v. Radcliffe, 164 Wash. 2d 900, 907, 194 P.3d 250
(2008). Our record shows the facts were undisputed. The investigating officer read Grubb his
Miranda3 rights from a preprinted card. Grubb acknowledged understanding his rights as each
was read to him. And Grubb initialed and signed the Miranda waiver form to signify that he
understood his rights and wanted to waive them. Grubb never requested an attorney, never stated
that he wanted to stop answering questions, and never appeared confused. Grubb was not
threatened, and he appeared to understand and track the investigating officer’s statements and
questions. Because Grubb indicated he understood his rights, and knowingly and voluntarily
waived those rights before giving a statement to the investigating officer, the trial court properly
concluded that Grubb’s statement was admissible.
Fourth, we review double jeopardy claims de novo. State v. Villanueva-Gonzalez, 180
Wash. 2d 975, 979-80, 329 P.3d 78 (2014). Because attempted child rape involves attempted
penetration and child molestation involves the touching of sexual parts for sexual gratification,
the two offenses do not violate double jeopardy. State v. Land, 172 Wash. App. 593, 600, 295 P.3d
782, review denied, 177 Wash. 2d 1016 (2013).
3
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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No. 49658-5-II
Based on the above, the potential issues raised by counsel are wholly frivolous. The motion
to withdraw is granted and the appeal is dismissed.
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.
Lee, J.
We concur:
Worswick, P.J.
Sutton, J.
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