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

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CHAD ERNEST CHRISTENSEN, UNPUBLISHED OPINION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.
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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.
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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:
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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.
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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
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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
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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.
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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
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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.
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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:
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