State Of Washington v. George Edward Savanah ( 2017 )

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 74924-2-1
Respondent,
DIVISION ONE
V.
GEORGE SAVANAH, UNPUBLISHED OPINION
Appellant. FILED: November 13, 2017
SPEARMAN, J. — The trial court has discretion to admit or exclude
evidence. We review evidentiary decisions for abuse of discretion and will only
reverse if the decision of the trial court is manifestly unreasonable. George
Savanah appeals his conviction for two counts of third degree rape of a child and
two counts of first degree incest. He contends the trial court erred in admitting
hearsay and opinion evidence. But because the trial court's decision to admit the
evidence was not manifestly unreasonable, we reject Savanah's arguments. We
also reject Savanah's contentions that he received ineffective assistance of
counsel and that the court failed to properly instruct the jury.
We accept the State's concession, however, that the court improperly
imposed a curfew as a condition of community custody. We affirm Savanah's
convictions but remand for the sentencing court to strike the improper condition.
No. 74924-2-1/2
FACTS
After Savanah's daughter, R,1 disclosed that she had been sexually
abused, the State charged Savanah with four domestic violence sex offenses. At
trial, R testified at length to the abuse. R stated that Savanah raped her for the
first time when she was 14 years old. She recounted sexual abuse that continued
for the next seven years.
R testified that she became pregnant three times, when she was 14, 16,
and 17 years old. In each case, Savanah took her to Planned Parenthood for an
abortion. Records from Planned Parenthood confirmed that Savanah took R to
the clinics for the procedures.
R stated that, at some point, Savanah became suspicious that his brother,
Car1,2 was having sex with R. In April 2014, Savanah's extended family gathered
at his home for Easter. Later that night, Savanah became convinced that R went
to Carl's room and had sex with him. Savanah angrily ordered R to go to his
bedroom and undress. R went to Savanah's bedroom but refused to have sex
with him. R testified that Savanah knocked her glasses off and hit her arms and
thighs.
R stated that, the next day, she talked to her aunt, Janet. R told Janet that
Savanah had hit her and she was afraid to go home. Janet arranged for R to stay
with a friend. Over the next few weeks, Janet was supportive of R but also
1 We refer to the victim by the initial "R" to protect her privacy.
2 We refer to members of Savanah's family by their first names for clarity. We intend no
disrespect.
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No. 74924-2-1/3
encouraged her to reconcile with her father. While R was on a brief trip to Ocean
Shores, she spoke with Janet on the phone. Janet again encouraged R to sit
down and talk with Savanah. R began to cry, told Janet she could not do that,
and disclosed the sexual abuse. On her way home from Ocean Shores, R also
disclosed the abuse to her friends Janiece and Juana.3
Janet testified that she called a family meeting to confront Savanah with
R's allegations and get to the truth. Janet stated that Savanah did not directly
respond to the question of whether he had sex with R. Savanah suggested that
Carl was the one who had been abusing R. He also told the family that R was
"not innocent in this." Verbatim Report of Proceedings(VRP)at 252-53.
Janet described Savanah as "defensive" during the meeting. Id. at 252.
She stated that she tried to shield R from Savanah's gaze because "he can have
a very intimidating look." Id. at 252. Janet stated that the family was "creating a
hedge between him and [R]to let her know that her family was supporting her in
these allegations." Id. at 253.
The jury convicted Savanah of two counts of third degree rape of a child
and two counts of incest. He appeals.
DISCUSSION
Savanah contends that the trial court erred in admitting hearsay and
opinion testimony. We review the trial court's evidentiary decisions for abuse of
discretion. State v. Neal, 144 Wash. 2d 600, 609, 30 P.3d 1255(2001)(citing State
3 We follow the parties' usage in referring to R's friends by their first names.
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No. 74924-2-1/4
v. Bourgeois, 133 Wash. 2d 389, 399, 945 P.2d 1120 (1997)). The trial court abuses
its discretion when its decision is manifestly unreasonable or based on untenable
grounds. Id. (citing State v. Stenson, 132 Wash. 2d 668, 701, 940 P.2d 1239
(1997)). A decision is manifestly unreasonable if it "adopts a view that no
reasonable person would take." Salas v. Hi-Tech Erectors, 168 Wash. 2d 664, 669,
230 P.3d 583(2010)(quoting In re Pers. Restraint of Duncan, 167 Wash. 2d 398,
402-03, 219 P.3d 666 (2009)).
Savanah first asserts that the trial court erred in admitting hearsay under
the fact of complaint rule. The fact of complaint rule allows the State to present
evidence that the victim complained to someone after the abuse. State v.
Ferguson, 100 Wash. 2d 131, 135, 667 P.2d 68(1983)(citing State v. Goebel, 40
Wash. 2d 18, 25, 240 P.2d 251 (1952))."The rule admits only such evidence as will
establish that the complaint was timely made." Id. It does not permit testimony
concerning details of the complaint, the identity of the offender, or the nature of
the abuse. Id. (citing State v. Murlev, 35 Wash. 2d 233, 237, 212 P.2d 801 (1949)).
In this case, the State moved pretrial to admit evidence that R told Janet,
Janiece, and Juana she had been sexually abused. The trial court granted the
motion over Savanah's objection. At trial, Janet testified that R told her over the
phone that she had been sexually assaulted. Janiece and Juana both testified
that, during the drive home from Ocean Shores, R told them she had been
sexually assaulted. They each stated only that R disclosed sexual abuse and did
not relate details of the allegations or who R said assaulted her.
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No. 74924-2-1/5
Savanah contends that the trial court abused its discretion in admitting this
evidence.4 He asserts that R's complaints to Janet, Janiece, and Juana were not
timely made, as required by the fact of complaint rule.5 Savanah contends that
the fact of complaint rule is like the excited utterance exception, which admits
statements "made while the declarant was under the stress of excitement caused
by the event or condition." ER 803(a)(2). Savanah provides no support for this
proposition. The authority he does cite clearly states that the fact of complaint is
admissible, not because the complaint was made under the stress of the event,
but "to show that the conduct of the prosecuting witness was consistent with her
testimony, and to rebut any inference that might arise from silence or
concealment. . . ." State v. Griffin, 43 Wash. 591, 598, 86 P. 951 (1906).
Next, Savanah appears to contend that this case is like Griffin and State v.
Chenoweth, 188 Wash. App. 521, 354 P.3d 13, rev. denied, 184 Wash. 2d 1023, 361
P.3d 747(2015), cases in which the victim's complaints were not timely. But the
cases are distinguishable. In Griffin, the complaints of sexual abuse were made
six months after the last assault. Griffin, 43 Wash. at 598. In Chenoweth, the
4 The State asserts that Savanah failed to object to the evidence at trial and thus failed to
preserve the claimed error. But Savanah objected during pretrial motions. Where a party has
argued against a motion in limine and the trial court has made a final ruling, the party losing the
motion has a standing objection. State v. Kelly, 102 Wash. 2d 188, 193, 685 P.2d 564(1984).
5 We reject the State's argument that a showing of timeliness is no longer required under
the fact of complaint rule. The State's reliance on Murlev for this proposition is misplaced. The
issue in Murley was whether certain testimony was properly admitted as a prior consistent
statement. Thus, any discussion of the fact of complaint rule was dicta. Moreover, subsequent
cases from our Supreme Court have reiterated the timeliness requirement. See Ferguson, 100
Wash. 2d at 135-36 ("[t]he rule admits only such evidence as will establish that the complaint was
timely made"). See also Chenoweth, 188 Wash. App. at 532-33 (rejecting the State's argument that
timeliness is no longer required).
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No. 74924-2-1/6
complaints were made a year after the assault. Chenoweth, 188 Wash. App. at
531. In this case, the complaints were made a few weeks after the last attempted
assault, far closer to the incident than in Griffin or Chenoweth. The trial court did
not abuse its discretion in finding that the complaints were timely made.
But even if the trial court erred, the error was harmless. Evidentiary error
is harmless unless there is a reasonable probability that, if the error had not
occurred, the outcome of the trial would have been different. Neal, 144 Wash. 2d at
611. To assess whether this was the case, we exclude the erroneous evidence
and construe the remaining evidence in the light most favorable to the
prosecution. Id.
In this case, R testified at length to sexual abuse that lasted seven years
and resulted in three terminated pregnancies. Janet, Janiece, and Juana each
testified that R disclosed she had been sexually abused. The fact of complaint
evidence is of minor significance in relation to the evidence as a whole. Any error
was harmless.
Savanah next asserts that the trial court erred in admitting improper
opinion testimony. He objects to Janet's statement that, at the family meeting, the
family supported R in her allegations. Savanah raises this argument for the first
time on appeal.
A witness may not express a personal belief as to the guilt of the
defendant. State v. Montgomery, 163 Wash. 2d 577, 591, 183 P.3d 267(2008)
(citing State v. Demerv, 144 Wash. 2d 753, 759, 30 P.3d 1278 (2001)). Whether
testimony is an impermissible opinion on guilt depends on the circumstances of
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No. 74924-2-1/7
the case, including the nature of the witness, the testimony, the charges, the
defense, and other evidence before the court. Id. Opinions are more likely to be
impermissible if they explicitly express a belief of guilt or quote a legal standard.
Id. (citations omitted). Opinions by police officers carry an "aura of reliability"
and require particular scrutiny. Id. (quoting Demery, 144 Wn.2d at 765).
Where the defendant did not object below, he may only raise an error on
appeal if it is manifest constitutional error. State v. Kirkman, 159 Wash. 2d 918, 934,
155 P.3d 125(2007)(citing State v. Scott, 110 Wash. 2d 682, 687-88, 757, P.2d
492(1988)). "Manifest" requires a showing of actual prejudice. Id. (quoting State
v. Walsh, 143 Wash. 2d 1, 8, 17 P.3d 591 (2001)). Improper opinion testimony is
only reviewable as a manifest constitutional error if the witness made "an explicit
or almost explicit statement on an ultimate issue of fact. .. ." Id. at 936.
In this case, Janet testified that, during the family meeting, Savanah was
"defensive" and stated that R was "not innocent in this." VRP (01/06/16) at 252-
53. Janet stated that she tried to shield R from Savanah's gaze because "he can
have a very intimidating look." Id. at 252. She testified that the family was
"creating a hedge between [Savanah] and [R]to let her know that her family was
supporting her in these allegations." Id. at 253.
Savanah asserts that this testimony amounted to an opinion that he was
guilty. He contends that, although the jury was properly instructed that it was the
sole judge of credibility, the jury was likely swayed by Janet's opinion. Savanah
asserts that he may raise this challenge for the first time on appeal because
admitting the evidence amounted to manifest constitutional error. We disagree.
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No. 74924-2-1/8
Janet's testimony that the family "was supporting" R was not an explicit
statement of belief in Savanah's guilt. Janet did not parrot a legal standard and
she held no position of authority that gave her testimony a particular aura of
reliability. Savanah fails to show that the evidence was error or that, if erroneous,
the evidence likely affected the outcome of the trial.
Savanah asserts, however, this this case is like State v. Johnson, 152 Wn.
App. 924, 219 P.3d 958(2009). In that case, the defendant was charged with
child molestation. Id. at 928. At trial, the defendant's wife testified on his behalf.
Id. at 932. In rebuttal, the victim and her parents each testified to a specific
conversation with the wife. Id. at 932-33. The victim and her parents testified that,
when the victim disclosed knowledge of intimate details about the defendant, the
wife burst into tears, said the allegations must be true, and apologized for not
believing the victim. The State's theory was that the evidence was permissible to
assist the jury in determining credibility. Id. at 933. We rejected this argument
because the wife's opinion was collateral and not a proper subject for
impeachment. Id. The testimony was highly prejudicial and had little if any
evidentiary value. Id. We held that the improper testimony was manifest
constitutional error that could be raised for the first time on appeal. Id. at 934.
Johnson is of no help to Savanah. In that case, the defendant
demonstrated manifest constitutional error because the testimony was improper
impeachment that included explicit hearsay statements expressing the wife's
belief that the defendant was guilty. The statements in this case were not
hearsay, did not explicitly express an opinion as to guilt, and were not elicited
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No. 74924-2-1/9
improperly. Savanah fails to show that the alleged error was manifest
constitutional error that may be raised for the first time on appeal.
Alternatively, Savanah asserts that he received ineffective assistance of
counsel because his attorney failed to object to Janet's testimony. We reject this
attempt to overcome the lack of objection. To prevail in a claim of ineffective
assistance of counsel, Savanah must prove that counsel's performance was
deficient and resulted in prejudice. In re Personal Restraint of Hutchison, 147
Wash. 2d 197, 206, 53 P.3d 17(2002)(citing State v. McFarland, 127 Wash. 2d 322,
334-35, 899 P.2d 1251 (1995)). We apply a strong presumption that counsel's
performance was effective. Id. Savanah's failure to establish prejudice as part of
his evidentiary challenge is fatal to his ineffective assistance of counsel claim.
And, because the challenged evidence was not an impermissible opinion on guilt,
Savanah's counsel was not deficient in failing to object.
Next, Savanah contends that the trial court violated his right to a fair trial
and unanimous verdict by failing to explicitly instruct the jury that it must
deliberate only when all twelve jurors are present. Because Savanah did not
object to the jury instructions below, he may only raise the alleged error here if he
demonstrates actual prejudice. Kirkman, 159 Wash. 2d at 934. Savanah points to
nothing in the record suggesting that the jury ever deliberated without all jurors
being present. The alleged error is not manifest.6
6 We also reject Savanah's assertion that cumulative error requires reversal in this case.
The cumulative error doctrine recognizes that the accumulation of errors may warrant reversal,
even though each error individually may be considered harmless. State v. Weber, 159 Wash. 2d
252, 279, 149 P.3d 646(2006)(citing State v. Greiff, 141 Wash. 2d 910, 929, 10 P.3d 390 (2000)).
Because Savanah fails to show error, the doctrine is inapplicable.
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No. 74924-2-1/10
Next, Savanah contends that the sentencing court erred in imposing as a
condition of community custody Special Condition 7, a 10:00 p.m. — 5:00 a.m.
curfew. We accept the State's concession that this condition is improper because
it bears no relation to the circumstances of Savanah's offense. We remand to
strike the curfew as a condition of community custody.
Savanah raises further challenges in a statement of additional grounds.
He asserts that the trial court erroneously admitted the records from Planned
Parenthood and unspecified hearsay statements. He contends that the trial court
erroneously excluded unspecified defense witnesses. He also contends that the
judge admitted evidence in Savanah's second trial that was suppressed in his
first tria1.7 Because Savanah did not object below, he may only raise the claims
here if they are manifest constitutional error that resulted in actual prejudice.
Kirkman, 159 Wash. 2d at 934.
Savanah fails to identify a ground for excluding the records from Planned
Parenthood and he fails to identify the other challenged evidence. He makes no
showing of prejudice due to the allegedly improper evidence. Savanah fails to
show that his evidentiary challenges are manifest constitutional error that may be
raised for the first time on appeal.
Savanah also appears to assert that he received ineffective assistance of
counsel because his attorney failed to call unspecified witnesses for the defense.
Savanah points to nothing in the record supporting this claim. He fails to show
7 Savanah's first trial resulted in a hung jury.
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No. 74924-2-1/11
that counsel's performance was deficient and resulted in prejudice. McFarland,
127 Wash. 2d at 335 (citations omitted).
Affirmed and remanded to strike the improper condition of community
custody.8
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WE CONCUR: >
.74
GAL,
'
8 Because the State declines to seek an award of appellate costs in this matter,(see Brief
of Respondent at 37), we do not address Savanah's request that costs not be imposed.
11