State Of Washington, V Peter Tvedt ( 2013 )

FILED
C01-` RT OF APPEALS
LJ MS 1011 4 h
2013 NOY 13 AM 11: 17
IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
STATE OF WASHINGTON, I No. 431:
Respondent,
V.
PETER TVEDT, UNPUBLISHED OPINION
PENOYAR, J. — Peter Tvedt appeals his convictions for one count of second degree child
rape and one count of intimidating a witness. He seeks a new trial because testimony from the
victim' s stepmother was admitted at trial under RCW 10. 58. 090, which our Supreme Court
found unconstitutional. Because admitting the evidence under RCW 10. 58. 090 was harmless
error, we affirm.
FACTS
1. BACKGROUND
At the time of the following events, Tvedt was staying with his daughter, Crystal Pittman,
Crystal' s husband, Jack Pittman, and Jack' s 13- year -old daughter, HP, in their home in
Spanaway. On February 22, 2011, HP did not have school. She testified that she awoke in the
living room to Tvedt speaking into her ear, telling her that he was going to sexually assault her.
After the assault, HP locked herself in the bathroom. Tvedt knocked on the door and said that if
she told anyone and he went to jail, he would " beat the shit out of her when he got out. Report
of Proceedings ( RP) ( Dec. 8, 2011) at 201, 202.
HP noticed that there was a substance later identified as semen on her shirt. She changed
for Tvedt and said that he
her clothes and pretended that she was leaving school. apologized
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would move out if HP wanted him to. She said that he should leave, and he left the house with
his belongings.
HP then called her aunt, Joanna Naylor. After hearing that HP was emotionally
distraught, Naylor drove to the Pittman house with her friend Jennifer Buchanan. Naylor called
Jack' and Crystal, who returned home and called the police. Jack and Crystal then took HP to
the Child Advocacy Center for a forensic interview and physical examination. HP told both the
forensic investigator and a nurse practitioner that Tvedt had sexually assaulted her.
After she had arrived at the Pittman' s, Naylor had placed H.P.' s shirt in a plastic bag,
which she gave to the police. Forensic DNA analyst William Dean tested the stain on HP' s shirt.
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The stain tested positive as semen and the DNA matched Tvedt' S.
Tvedt offered a different version of the events. Tvedt claimed that he had deposited
semen on a towel in the bathroom after masturbating in the shower. He claimed that HP
transferred the semen to her shirt in an attempt to frame him for rape. He alleged that she had
stolen a hundred dollars from his suitcase and was afraid he would inform her parents. Tvedt
said that, after he caught her stealing, HP went to the bathroom, where he saw her holding the
towel. Tvedt then decided to leave the house. Before leaving, Tvedt called Crystal to tell her
that he was moving out. He also retrieved the towel from the bathroom, where it was in a
ruffled" condition. RP ( Dec. 13, 2011) at 461. He threw the towel on the front seat of his car
and drove to a residence in Puyallup, where his car remained until trial. On February 25, 2011,
the State charged Tvedt with one count of second degree child rape and one count of intimidating
a witness.
For clarity' s sake we refer to the Pittmans by their first names. We intend no disrespect.
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Dean testified that the odds that it was not Tvedt' s semen were 1 in 870 quadrillion.
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II. PROCEDURE
The State made a pretrial motion to admit allegations that Tvedt had attempted to rape
Crystal when she was nineteen years old. The trial court heard testimony from Crystal that this
incident occurred when she was alone with Tvedt watching television. He asked her to perform
oral sex and she refused. He then attempted to force her head toward his lap, but she struggled
until he released her. At that point, Tvedt apologized and explained that he had been having
problems with Crystal' s mother. Crystal did not tell police about the incident, but she did tell her
best friend. Crystal testified that she allowed Tvedt to temporarily live in her house in 2011 only
because she wanted to believe that he had changed. Crystal did not initially tell the detectives on
the scene about the incident, but testified that this was because she was nervous and worried that
HP would be taken away from them. The court ruled that Crystal' s testimony was admissible
under RCW 10. 58. 090.
At trial, Tvedt testified in his own defense and alleged that he had attacked neither H.P.
nor Crystal. He said he was unaware, until February 26, that Crystal had ever made any
accusation against him.
The jury found Tvedt guilty of one count of second degree child rape and one count of
intimidating a witness. The trial court sentenced him to 114 months to life on the first count and
20 months on the second count, to run concurrently.
ANALYSIS
Tvedt argues ( 1) that the trial court erred by admitting Crystal' s testimony under RCW
10. 58. 090 because that statute was declared unconstitutional in State v. Gresham, 173 Wash. 2d
405, 269 P.3d 207 ( 2012), and ( 2) that the testimony was not alternately. admissible under ER
404( b). The State concedes that RCW 10. 58. 090 is unconstitutional. We agree with the parties
K?
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that the trial court erred by admitting Crystal' s testimony under RCW 10. 58. 090 but hold that the
error was harmless.
Because the admission of a defendant' s evidence of other crimes is not an error of
constitutional magnitude, the admission is harmless if there is a reasonable probability that the
outcome of the trial would not have been materially different had the error not occurred. State v.
Kidd, 36 Wn. App. 503, 507, 674 P.2d 674 ( 1983). In Gresham, the Supreme Court concluded
that the admission of the defendant' s prior conviction was not harmless error. 173 Wash. 2d at 434.
There, the remaining admissible evidence consisted solely of the victim' s testimony and the
victim' s parents' corroboration that the defendant had an opportunity to molest the victim.
Gresham, 173 Wash. 2d at 433. Given the remaining evidence, the Gresham court held that " there
is a reasonable probability that absent this highly prejudicial evidence of Gresham' s prior sex
offense ... the jury' s verdict would have been materially affected." 173 Wash. 2d at 433 -34.
By contrast, the admissible evidence in this case is considerably more persuasive than the
evidence in Gresham. First, there is HP' s testimony that Tvedt forced her to perform oral sex.
HP also reported the incident to her parents, Naylor, a forensic investigator, and a nurse
practitioner shortly after it happened. Second, the DNA recovered from HP' s shirt was
positively identified as Tvedt' s by an overwhelming probability: Dean testified that the odds that
the semen was not Tvedt' s were 1 in 870 quadrillion. Finally, the version of events that Tvedt
offered was utterly incredible. No reasonable juror would believe that 13- year -old HP just
happened to become aware of a substance on a towel in the bathroom, shrewdly discerned that
the substance was some of Tvedt' s semen, and then quickly conceived of a complicated plot to
wipe the semen on her own shirt and falsify a report of abuse by Tvedt to prevent him from
reporting her previous theft. Thus, the jury could see that Tvedt was making up a fanciful tale to
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get out of trouble. Taken together, this evidence is overwhelming, and we conclude there is no
reasonable probability that the evidence of Tvedt' s actions toward Crystal affected the outcome
of the trial. Therefore, any error was clearly harmless and we need not examine the evidence
further under ER 404( b). 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.
enoyar, J.
We concur:
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Johanson, A.C. .
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Bjo: gen, J.
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