State of Washington v. Ryan Allen Reid

FILED
FEB 12,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 31896-6-111
Respondent, )
)
v. )
)
RYAN ALLEN REID, ) UNPUBLISHED OPINION
)
Appellant. )
KORSMO, J. Ryan Reid appeals his two convictions for first degree child
molestation, alleging that the trial court permitted improper opinion testimony and that
his counsel did not perform effectively. We affirm.
FACTS
Mr. Reid was formerly married to Tina Woodraska and fathered two daughters by I
her, including A.L.R. who was born in 2005. He was also stepfather to Tina's son, I
I
A.R.E., who was born in 1998. The charges involved those two children during a time
I
period in 2007-2008 when A.L.R. was two and A.R.E. was nine or ten. Two counts of
I
first degree child molestation involving A.L.R. and one count involving A.R.E. were
I
II
filed.
I
No. 31896-6-III
State v. Reid
At trial, A.L.R. did not remember the events in question. As a result, her primary
evidence consisted of a taped interview made two years earlier. Part ofthat testimony
was corroborated by her mother and by the testimony of Eric O'Leary, Ms. Woodraska's
brother. A.R.E. described one incident of molestation.
The investigating detective, Ben Estes, testified concerning the course of his
investigation and the steps he undertook to obtain statements from the witnesses,
including Mr. Reid. In the course of his testimony, the detective described how witness
statements conflicted, which raised "red flags" to him that someone was lying. He did
not state who he believed might be lying. Defense counsel objected to various aspects of
the detective's testimony, but not to these statements.
In the course of her testimony, Ms. Woodraska stated that as far as she knew, "he
sexually abused them. I know for sure. I don't want them to get hurt." Counsel also did
not object to this testimony. She admitted that the disclosures of sexual abuse came out
during the couple's contested marriage dissolution and that she attempted to limit Mr.
Reid's contact with the children.
Mr. Reid testified in his own defense and explained the incidents relating to the
two children as innocent behavior. Defense counsel spent nearly the entirety of his
closing argument attacking the credibility of Ms. Woodraska and Mr. O'Leary,
contending that Ms. W oodraska was attempting to obtain through the criminal law what
the family law judges had denied her-exclusion of Mr. Reid from the children's lives.
2
No. 31896-6-III
State v. Reid
The jury found Mr. Reid guilty of one count involving A.L.R. and one count
involving A.R.E. The jury acquitted Mr. Reid on the second count involving A.L.R.
After imposition of a standard range sentence, Mr. Reid timely appealed to this court.
ANALYSIS
Mr. Reid's appeal argues that the noted testimony of Ms. Woodraska and
Detective Estes constituted improper opinion testimony that deprived him of a fair trial.
He also argues that his counsel failed to provide effective assistance by not challenging
various testimony.l We address these matters as two separate contentions.
Improper Opinion Testimony
Mr. Reid contends that the noted evidence from Detective Estes constituted an
opinion that Mr. Reid lied during the investigation and that the quoted testimony from
Ms. Woodraska was an expression that she believed him guilty. In neither instance did
the defense object to the testimony. We conclude that Mr. Reid has not established that
either episode constituted manifest constitutional error.
I
!
(
I
1 Counsel also argues that cumulative error prevented a fair trial, while Mr. Reid
filed a Statement of Additional Grounds (SAG) arguing, apparently, that counsel was
ineffective and that there were factual inconsistencies in the testimony of the State's
I
t
~
f
witnesses. In light of our conclusion that there were not multiple errors, we do not t.
f
further address the cumulative error argument. The first SAG issue repeats an argument
adequately raised by counsel, so we will not further address it. RAP 10.1 O(a). The other tJ
issue does not adequately explain what was erroneous, let alone how the error prejudiced t
the defense. It is inadequate for our review. RAP 10.10(c). I
3
No. 31896-6-III
State v. Reid
It is improper for one witness to state that another witness is lying; it is equally
improper for a witness to opine that the defendant is guilty. State v. Black, 109 Wn.2d
336,348, 745 P.2d 12 (1987); State v. Kirkman, 159 Wn.2d 918,927, 155 P.3d 125
(2007). In each instance, such testimony invades a function of the jury to determine
credibility and guilt or innocence. Black, 109 Wash. 2d at 348; Kirkman, 159 Wash. 2d at 927.
When a witness violates one of these strictures, the defendant's due process right to a fair
trial is infringed. Kirkman, 159 Wash. 2d at 927.
Evidence rulings typically are reviewed for abuse of discretion. A trial judge's
decision to admit or exclude evidence under these provisions is reviewed for abuse of
discretion. Diaz v. State, 175 Wash. 2d 457, 462, 285 P.3d 873 (2012). Discretion is
abused when it is exercised on untenable grounds or for untenable reasons. State ex rei.
Carroll v. Junker, 79 Wn.2d 12,26,482 P.2d 775 (1971). An appellate court will only
consider the specific objection raised in the trial court. State v. Guloy, 104 Wash. 2d 412,
422, 705 P .2d 1182 (1985). The failure to raise an objection waives any challenge to the
evidence. Id.; State v. Boast, 87 Wn.2d 447,451-52,553 P.2d 1322 (1976). As a general
rule, the failure to raise an issue in the trial court precludes appellate review of the issue.
RAP 2.5(a). The most common exception to that rule is that a claim raising a manifest
constitutional error may be reviewed. RAP 2.5(a)(3). A claim is manifest ifthe facts in
the record show that the constitutional error prejudiced the defendant's trial. State v.
4
No. 31896-6-111
State v. Reid
McFarland, 127 Wn.2d 322,333,899 P.2d 1251 (1995). However, if the necessary facts
are not in the record, "no actual prejudice is shown and the error is not manifest." Id.
It is the last two of these principles that govern this case. Because there was no
objection to the now-challenged testimony, this court can consider the arguments only if
the record establishes prejudicial constitutional error that puts this case within the reach
of RAP 2.5(a)(3). That is not the case here.
I
I,
The detective's testimony did not state that Mr. Reid was lying to him. The !
l
detective believed someone was probably lying during the investigation, but never stated
I
that any specific person he talked to was doing so. In order to constitute an improper ,I
opinion, the testimony must be a nearly "explicit statement of opinion on the credibility r
of the defendants or victims." Kirkman, 159 Wash. 2d at 938. The evidence cited does not I
[
meet that threshold. The detective did not identify who he specifically thought was not
being truthful and was not an opinion on that person's statement. Instead, he was
explaining why he kept going back to the witnesses for further information as the case
I,
r
I,
developed. Having not identified any person or testimony that he suspected was
untruthful, this testimony did not constitute an improper opinion. 2
I
2 Similar testimony presenting the converse of this issue was one of the issues
{
l
presented in Kirkman. There an officer had testified that he told the child victim that it
was important that she tell him the truth. Id. at 925. She then told the officer what had
happened to her and the officer repeated those statements to the jury. Id. Our court
I
concluded that this testimony did not constitute a statement that the officer thought the
victim was telling the truth and was not manifest constitutional error. Id. at 931.
5
Ii
f
!
No. 31896-6-111
State v. Reid
We reach the same conclusion, although for a different reason, with respect to the
challenged testimony of Ms. Woodraska. Her challenged testimony is ambiguous and,
thus, does not amount to a clear statement ofguilt despite its wording. This argument
involves the following sentences in the transcript of her testimony in response to the
prosecutor's question on direct examination about why she did not want Mr. Reid visiting
with the children: i
Well, 1 don't want [him] to hurt them. 1 don't want them 1 mean, he's ~
i
physically abusive. And as far as 1 know, he sexually abused them. 1 know
for sure. 1 don't want them to get hurt. And that's the only reason 1 would
ask that he just not hurt them anymore. 1
I
!
I
Report of Proceedings (RP) at 209. i
iI
,
The idiom "as far as 1 know," does not express an opinion that defendant is guilty,
.I•
but merely states the possibility that he is guilty, so the claimed error arises from the If
~
i
sentence, "I know for sure." As the statement in the record is written, it is unclear what f
I
Ms. Woodraska is testifying that she knows. Mr. Reid asserts that it applies to the
i
t
previous sentence about sexual abuse and is an opinion on his guilt. However, it seems
from the context equally likely, if not more likely, that the statement is a part of the
following sentence, and that she essentially said, "He's physically abusive, and as far as 1
know he sexually abused them. 1 know for sure that 1 don't want them to get hurt." Read
this way, Ms. Woodraska has merely stated the possibility that he is guilty and expressed
a desire to protect her children from potential harm. It is impossible to determine from
6
No. 31896-6-111
State v. Reid
the record whether Ms. Woodraska stated an opinion as to Mr. Reid's guilt. The
ambiguous statement may have been closer in time to one sentence or another, but again
the written transcript simply does not tell us that. 3
Accordingly, neither of the claimed instances constitutes a clear statement about
the defendant's guilt that makes the alleged error of a manifest constitutional nature. The
claims are without merit.
Ineffective Assistance ofCounsel
Mr. Reid also argues that his counsel was ineffective in failing to challenge the
noted statements as well as in failing to object to other evidence including the mother's
testimony concerning statements made by A.L.R., testimony about physical violence, and
statements made by a child welfare investigator. His argument does not satisfy his heavy
burden in this proceeding.
The Sixth Amendment guaranty of counsel requires that an attorney perform to
the standards of the profession. Counsel's failure to live up to those standards will
require a new trial when the client has been prejudiced by counsel's failure. McFarland,
127 Wash. 2d at 334-35. In evaluating ineffectiveness claims, courts must be highly
deferential to counsel's decisions. A strategic or tactical decision is not a basis for
3 Indeed, the failure to object is suggestive that defense counsel did not think it
was a comment on guilt, but merely an affirmation that Ms. Woodraska wanted to protect
her children.
7
No. 31896-6-III
State v. Reid
finding error. Stricklandv. Washington, 466 U.S. 668, 689-91,104 S. Ct. 2052,80 L. Ed.
2d 674 (1984). Under Strickland, courts apply a two-prong test: whether or not (1)
counsel's performance failed to meet a standard of reasonableness and (2) actual prejudice
resulted from counsel's failures. Id. at 690-92. When a claim can be disposed of on one
ground, a reviewing court need not consider both Strickland prongs. Id. at 697; State v.
Foster, 140 Wn. App. 266,273, 166 P.3d 726, review denied, 162 Wash. 2d 1007 (2007).
Initially, Mr. Reid presents the previous two arguments as evidence that counsel
performed ineffectively by failing to object to the "guilt" testimony. As we have found
that neither claim was substantiated, these arguments do not show that counsel performed
ineffectively. Accordingly, the first prong of the Strickland standard was not established
and we need not further address this aspect of the claim. 466 U.S. at 690, 697.
Mr. Reid next argues that counsel should have objected to the testimony of Ms.
Woodraska that A.L.R. told her that Mr. Reid hurt her in her private parts and that he had
been physically abusive to A.R.E. He also points to testimony by Ms. Karen Winston
concerning her follow up with Ms. Woodraska after the forensic interview of A.L.R.
Actions of the trial attorney cannot be considered ineffective assistance of counsel
where those actions were in furtherance of a reasonable trial strategy. Consequently, in
examining the claimed deficiencies in trial counsel's representation, it is necessary to
bear in mind the defense theory ofthe case. Defense counsel focused on the fallout from
a contentious divorce. He pointed to evidence that Ms. W oodraska had sought to
8
No. 31896-6-III
State v. Reid
severely limit and prevent access by Mr. Reid to the children prior to any allegations of
abuse. He then argued that subsequent, escalating allegations of alcoholism, physical
abuse, and then sexual abuse were part of a pattern of actions by Ms. W oodraska aiming
to limit Mr. Reid's access to their children by any means necessary. See RP at 214-20.
He then also pointed to inconsistencies in the testimonies of prosecution witnesses to cast
doubt on the allegations of molestation. In light of this overarching trial strategy, several
of the evidentiary issues complained about on appeal were useful or necessary to
establish that theory of the case, and cannot be used to establish a claim of ineffective
assistance of counsel.
Evidence of physical abuse presented was from testimony by Ms. Woodraska and
A.R.E. Since the defense theory of the case involved characterizing Ms. Woodraska's
various allegations as ploys to gain custody of the children, the defense needed some
testimony from Ms. Woodraska concerning physical abuse in order to make this
argument. Some of this testimony was even in response to defense's cross-examination.
See RP at 227-28. For instance, defense counsel asked Ms. Woodraska, "A year and a
half later you're back again with CPS allegations, and you do get it amended to get closer
to the original custody arrangements that you wanted?" RP at 228. The court made note
of such evidence being entered without objection and offered the defense an opportunity
to enter a limiting instruction, but defense declined citing trial strategy as the reason.
RP at 349, 382.
9
No. 31896-6-111
State v. Reid
The testimony given by Ms. Winston concerning her discussion with Ms.
Woodraska also was useful to the defense. Mr. Reid characterizes this testimony as a
statement by a credentialed expert of beliefin the allegations. However, all the testimony
amounted to was a statement that Ms. Winston informed Ms. Woodraska of prudent
further actions to provide safeguards against potential abuse. RP at 154-55. This
recommendation did play into defense counsel's argument that the allegations were all
about Ms. Woodraska restricting Mr. Reid's access to his children. It amounted to
evidence of a discussion concerning how to restrict such access.
These noted instances were part of the defense trial strategy and do not establish
that counsel erred.
The statements Ms. Woodraska claims A.L.R. made to her track exactly the
statements A.L.R. made in the forensic interview, which was admitted into evidence
under the child hearsay rule. It is difficult to see how Ms. Woodraska's quoting A.L.R.
would have any effect on the outcome after the jury had already been presented with a
video of A.L.R. making the same quoted statements. Trial counsel could have objected
and the evidence would likely have been stricken, but it would not have substantively
changed the evidence before the jury, and may have appeared combative. Thus, any error
here did not prejudice Mr. Reid, let alone cast doubt on the outcome of the trial.
None of the allegations establish that defense counsel failed to adequately
represent Mr. Reid. The evidence was either admissible, consistent with the defense
10
No. 31896-6-111
State v. Reid
theory of the case, or cumulative to other properly admitted evidence. Accordingly, Mr.
Reid has not established that his counsel performed ineffectively.
The convictions are affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
I
i
1
f
r
WE CONCUR:
II
I
I
I
~
I
I
i
I
ft
II
!
I
i
!
1
I!
i
1
j
1
11