State v. Harstad
State v. Harstad
Opinion of the Court
¶1 A jury convicted Ronald Harstad of molesting two of his son’s girl friend’s children, indecent exposure,
¶2 B, Su, and Sh are sisters.
¶3 Johnson was transferred from prison to work release in August 2006. Christina Dick, the girls’ cousin, would pick up B and Sh from Harstad’s house and take them to visit their father. Toward the end of one visit, B volunteered that she did not want to go back to Harstad’s house. She told Christina that Harstad was “ ‘an old perverted man’ ” and that “ ‘he always touches me right here,’ ” placing her hand on her inner thigh “really close to her vagina” to demonstrate what Harstad had done. Johnson and Sh were in the car during this revelation. After B’s disclosure, Christina dropped the girls off at Harstad’s brother David’s house to meet Kuether for the one-block walk back to where they lived with Harstad.
¶5 Johnson, Kuether, and the girls moved into a house together in Lake Stevens in February 2007 after Johnson had completed work release. Kuether still intermittently stayed with Todd at Harstad’s house. On one occasion in May 2007, as Johnson was dropping the girls off with Kuether, who was at Harstad’s house, the girls cried and said they did not want to be there. Johnson later sat the girls down and asked why. B said she had seen Harstad “playing with his thing.” Su said Harstad told them, “ ‘[L]et me see your pussy.’ ” Johnson told Kuether and Todd what he had learned but did not call the police.
¶6 Christina did not see the girls as often after they moved to Lake Stevens, although she started getting frequent phone calls from Sh saying they were home alone, scared, and had not eaten. In response to some of these calls, she would go pick them up, finding their house dirty and foodless and the girls begging for leftovers from a market across the street. Johnson went back to jail twice in June 2007. On July 17, 2007, Christina called the police after receiving another call from Sh that she and her sisters were alone, afraid, and had no food. Christina was tired of the girls being left alone and was concerned that Sh was not getting the heart medication she needed during Kuether’s absences. Christina’s parent’s, Sherry and Timothy Dick, took the girls into their house.
f7 Steven Serabells, a CPS investigator, went to the Dicks’ house the next day after having received a neglect referral. Sherry and Christina were present during Sera-bells’ conversation with the girls. Towards the end of the hour long conversation, Serabells asked if there was anything else they wanted to tell him. B became upset and
¶8 Serabells reported their disclosures to the Seattle Police Department, and Detective Donna Stangeland was assigned to the case. Carolyn Webster, a child interview specialist with the prosecutor’s office, interviewed B, Su, and Sh separately. During B’s interview, a recording of which was admitted at trial, she explained how Ron “used to put his hand like right by my private place.” B said this would happen when she was sleeping on the couch wearing only underwear and a T-shirt. B said that Harstad would put his hand over her underwear, near her “private spot,” and that his hand would “always be like rubbing it.” This happened more than 5 times. B marked on a body drawing where Harstad touched her. B also demonstrated that Harstad would make a “come here” gesture by bending his index finger while whispering, “let me[ ] see your pussy” to B. This happened “a lot of times,” which B defined as more than 5. B saw Harstad walk out of the bathroom naked more than 10 times and saw the “front part” of his private place. During the interview, B asked to take a break to ask her sister if “it really happened or it was a dream.” B wrote a note to her sisters to read before their interviews, telling them “I V you [Su], plez tell the truth Sh to[o] V xoxoxoxo.”
¶9 The police arrested Harstad on July 25, 2007. Stangeland interviewed Harstad, who conceded only that he might have touched the girls in a nonsexual manner, that he put a blanket over Sh, and that he might have been visible to them on occasion walking naked at night from the bathroom to the bedroom. Harstad denied any improper touching, statements, or exhibition. A DVD (digital video disk) of the interview was admitted at trial. The State charged Harstad with three counts of first degree child molestation against B, one count of first degree child
¶10 All three girls testified at trial. B told the jury that Harstad “touched [her] private place” and “[l]ike right by her private place.” She drew a hand on the upper inner thigh of a body sketch to demonstrate where Harstad touched her. She said it happened at night and about six times. B said Harstad whispered, “Let me see” your “pussy,” which made her “[m]ad and angry.” B also told the jury that Harstad would stand next to the bathroom naked, standing still while moving his “dick” with his hand, which made her feel “[n]asty.”
¶11 Su described sleeping in the living room and waking up to see Harstad in the kitchen “[s]haking his private area,” which was sticking out “[t]hrough the hole thing” in his underwear. Su thought Harstad was doing the dishes at first because he turned on the kitchen faucet, but then she could see what he was doing when he stepped to the side. What he was doing made her uncomfortable, and she closed her eyes. Su also saw Harstad in the hallway, naked, and making “psst” noises to catch her attention. Su told the jury that Harstad said, “ T want to see your “P” word,’ ” explaining that the word is spelled “P-u-s-s-y.” Harstad made this request at the house and at the trailer.
¶12 Sh described a night when she was 11 and had fallen asleep fully dressed on a couch in Harstad’s living room
f 13 The jury found Harstad guilty as charged. After a bifurcated proceeding, the jury also found that all of the aggravating factors had been committed. The trial court imposed a minimum term on counts 1 through 4 at the high end of standard range (198 months to life) and standard range sentence on counts 7 through 8 (60 months), all to run concurrently. The trial court acknowledged that the jury found aggravating factors but did not impose an exceptional sentence. For the misdemeanor indecent exposure convictions (counts 5 and 6), the court imposed 12 month sentences to be served concurrent with one another but consecutively to the felonies. Harstad appeals.
DISCUSSION
¶14 Evidence is sufficient to support a conviction if, after viewing all of the evidence in the light most favorable to the State, any rational juror could have found the elements of the crime proved beyond a reasonable doubt.
I. Sufficiency of the Evidence
f 15 Harstad argues that the State did not prove that B’s and Sh’s upper inner thighs were intimate parts and that the State did not prove his touching was done for the purposes of sexual gratification. “Contact is ‘intimate’ within the meaning of the statute if the conduct is of such a nature that a person of common intelligence could fairly be expected to know that, under the circumstances, the parts touched were intimate and therefore the touching was improper.”
¶16 Here, B testified that Harstad touched her at night when everyone else was asleep; that she slept wearing only a “T-shirt and underwear, because [she] used to be hot a lot”; that Harstad touched her “private place,” which she defined as the part that is covered by her underpants, and “[l]ike right by [her] private place”; that it happened “[a]bout six times or something”; and that Harstad’s hand would “always be like rubbing it” when he touched her. She also drew a hand on body sketch’s upper inner thigh to
¶17 Testimony that B slept in her underwear supports a finding that Harstad did not touch her upper inner thigh over her clothing, which in turn supports an inference of sexual purpose.
f 18 Substantial evidence also supports the jury’s conclusion that Harstad touched Sh’s intimate parts when he put his hand under the blanket and moved it from side to side “[b]y [her] private area.” Sh marked the upper inner thigh of the body sketch to show where Harstad touched her.
¶19 Harstad’s suggestion he performed the sort of de facto caretaking role that would explain his touching of B and Sh is not supported by the evidence. Covering a child with a blanket could be seen as caretaking, but it is not the kind of caretaking that requires close contact with an unrelated child’s intimate parts. Covering a child with a blanket in order to hide inappropriate touching is, put simply, not caretaking.
II. Vagueness
¶20 Penal statutes must provide fair notice of the conduct they proscribe and provide adequate standards against arbitrary, erratic, and discriminatory enforcement.
III. Vouching for B’s Credibility
¶21 Because Harstad did not object to Webster’s testimony at trial, he must show both an error of constitutional magnitude and material prejudice.
¶22 Harstad contends that the prosecutor asked Webster whether B had been telling the truth and that Webster responded yes. But a complete review of Webster’s testi
[Prosecutor:] So turning your attention to page eight [of Ex. 23], following your rules, you move on to the truth and a lie, and you ask the question at line 15?
[Webster:] “Is it better to tell the truth or to tell a lie?”
Q: And [B] tells you?
A: “Tell the truth.”
Q: And you say?
A: “How come the truth is better?”
Q: And [B] says?
A: “Uh, so you guys can do stuff right.”
Q: And then you go on to say at line 19?
A: ‘Yeah, okay. And when we talk in here today, it’s important that we only talk about the truth. Promise we’ll only talk about the truth today?”
Q: And what does [B] do?
A: She nods her head “yes.”
Q: You also talked about - - when asked about the difference between open-ended questions and directed questions, you said something in response to counsel about that older kids will also correct you when you say something that maybe you got wrong. Did [B] correct you at all during this interview?
A: Yes, she did.
Q: And as a child interview specialist with your training and your experience, did that indicate to you that she was following your instructions?
A: To the best that I could see, yes.
¶23 Harstad urges us to adopt an implausible reading of this testimony. The more natural reading of the prosecu
TV. Sentencing
¶24 The sentencing court did not impose an exceptional sentence. For first degree child molestation (counts 1 through 4), which has a seriousness level of 10, 149 to 198 months is the standard range for an offender with a score of 15.
¶25 Felony communication with a minor for immoral purposes (counts 7 and 8) has a seriousness level of 3,
¶26 Harstad also argues that the trial court relied on the allegedly erroneous findings in running Harstad’s sentence for his two indecent exposure misdemeanor convictions consecutively to his sentence for the felony counts. But the trial court has discretion to run misdemeanor sentences consecutively even though there are no aggravating factors.
V. Ineffective Assistance
¶27 To demonstrate ineffective assistance, Harstad must show that defense counsel’s representation fell below an objective standard of reasonableness and that the deficient representation prejudiced him.
¶28 A child is competent to testify if, among other factors, she understands the obligation to testify truthfully.
B. Not Offering Evidence That Sh Had Been Abused by One ofKuether’s Previous Boyfriends After the Prosecutor Allegedly Opened the Door to That Evidence
¶29 The record shows that the prosecutor did not do anything to make evidence of prior abuse relevant. Instead, Su merely made a passing reference that “[Sh] told him [presumably Serabells] about him [presumably Harstad] and some other time, about a different person.” Because the prosecutor did not elicit this vague reference to “some other time,” he did not open the door for defense counsel to
C. Not Objecting to the Note B Wrote to Her Sisters During Her Forensic Interview Urging Them To Tell the Truth
¶30 The record shows that Harstad’s counsel effectively used this evidence to build on one of the defense themes, which was that the girls were influenced by one another in a manner that tainted the reliability of their statements. “[T]his court will not find ineffective assistance of counsel if ‘the actions of counsel complained of go to the theory of the case or to trial tactics.’ ”
D. Not Objecting to the Trial Court’s Ruling in Response to David Harstad’s Testimony
¶31 The girls were frequently at Harstad’s brother’s house, and the defense sought to establish that the girls never said anything to him about the abuse. The trial court struck David’s testimony that the girls never told him that Harstad had done anything to them as hearsay. Defense counsel did not object. Even if the statement is not hearsay, the trial court would have been within its discretion to strike the testimony as irrelevant under ER 401. The fact that the girls did not reveal to their mom’s boyfriend’s dad’s
E. Defense Counsel Did Not Propose Instructions Clarifying the Aggravating Factor Findings
¶32 The State correctly argues that even if not proposing clarifying instructions had been deficient, Harstad did not receive an exceptional sentence and thus was not prejudiced by any alleged deficiency.
F. Cumulative Error
¶33 Harstad’s argument that defense counsel’s allegedly numerous trial strategy deficiencies constitute cumulative error is not persuasive. It is not supported by case law establishing how defense counsel’s being “relatively mute” was actually deficient or prejudicial.
G. Statement of Additional Grounds
¶34 In his statement of additional grounds for review, Harstad argues that his lawyer was deficient in excusing one crucial witness. Harstad is apparently referring to counsel’s decision not to call his son, Todd, as a witness. The record does not show what exculpatory testi
¶35 Affirmed.
Grosse and Appelwick, JJ., concur.
B was 9 years old at trial, Su was 11, and Sh was 12.
Toby is not Su’s biological father, but he considers himself the father of all three girls.
Harstad had prior communication with a minor for immoral purposes convictions.
State v. Joy, 121 Wn.2d 333, 338, 851 P.2d 654 (1993).
See RCW 9A.44.083.
RCW 9A.44.010(2).
See State v. Brooks, 45 Wn. App. 824, 826, 727 P.2d 988 (1986).
State v. Jackson, 145 Wn. App. 814, 819, 187 P.3d 321 (2008).
In re Welfare of Adams, 24 Wn. App. 517, 521, 601 P.2d 995 (1979).
State v. Powell, 62 Wn. App. 914, 917, 816 P.2d 86 (1991), review denied, 118 Wn.2d 1013 (1992).
24 Wn. App. 517, 520, 601 P.2d 995 (1979).
See Powell, 62 Wn. App. at 917.
Harstad argues that exhibit 21 does not support the State’s claim that Sh demonstrated that Harstad touched her upper inner thighs. But our review of the exhibit shows that the State properly described the evidence.
See id.
City of Spokane v. Douglass, 115 Wn.2d 171, 180, 795 P.2d 693 (1990).
State v. Watson, 160 Wn.2d 1, 7, 154 P.3d 909 (2007) (quoting Connally v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 70 L. Ed. 322 (1926)).
Douglass, 115 Wn.2d at 182.
306 Or. 458, 760 P.2d 884 (1988). Nor is it not clear how applying State v. Woodley’s test would lead to a different analysis or conclusion here, or how using that test would cure any alleged vagueness infirmities. Under Woodley, the person touched must regard the part as intimate. Id. at 463. Evidence that both girls testified that Harstad touched them in their “private places” satisfies that threshold. Next, if the accused did not know the part was intimate to the person, the State must prove beyond a reasonable doubt that the accused should have recognized it to be an intimate part, which is what the State established here. See id. And our review of the evidence shows that the State presented sufficient evidence to support the jury’s determination that the girls’ upper inner thighs were intimate parts.
See RAP 2.5(a) (“The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed error[ ] for the first time in the appellate court: ... (3) manifest error affecting a constitutional right.”); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995).
State v. Fitzgerald, 39 Wn. App. 652, 657, 694 P.2d 1117 (1985).
State v. Kirkman, 159 Wn.2d 918, 936, 155 P.3d 125 (2007).
See RCW 9.94A.515.
Former RCW 9.94A.712(3)(b).
Former RCW 9.94A.712(3)(c)(i).
RCW 9.94A.515, Tbl. 2.
RCW 9.94A.515, Tbl. 1.
State v. Besio, 80 Wn. App. 426, 431, 907 P.2d 1220 (1995) (holding that the Sentencing Reform Act of 1981, chapter 9.94A ROW, applies only to felonies); State v. Langford, 67 Wn. App. 572, 587-88, 837 P.2d 1037 (1992) (“Thus, the court did not need to find reasons justifying an exceptional sentence to impose the consecutive sentences” for the misdemeanor convictions on top of the sentences for the felony convictions.), cert. denied, 510 U.S. 838 (1993).
By “free crimes” the trial court is referring to crimes that go unpunished because Harstad has an offender score of 15 and the standard range does not change for offender scores of 9 and above.
See McFarland, 127 Wn.2d at 334-35.
See State v. Townsend, 142 Wn.2d 838, 843-44, 15 P.3d 145 (2001).
State v. Allen, 70 Wn.2d 690, 692, 424 P.2d 1021 (1967).
The trial court found that the “evidence amply supports a finding that B is a competent witness.”
See State v. Stockton, 91 Wn. App. 35, 40, 955 P.2d 805 (1998) (passing reference to a prohibited topic does not open door for cross-examination about that topic).
Defense counsel did seek to introduce evidence of past abuse earlier in the trial, but the trial court ruled against him.
State v. Garrett, 124 Wn.2d 504, 520, 881 P.2d 185 (1994) (quoting State v. Renfro, 96 Wn.2d 902, 909, 639 P.2d 737, cert. denied, 459 U.S. 842 (1982)).
The trial court ruled that defense counsel’s rephrased question on the same subject would not be allowed because it was irrelevant. Evidentiary rulings are within the sound discretion of the trial court, and we find abuse of discretion only where no reasonable person would have ruled as the trial court did. State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). Here, the trial court did not abuse its discretion by ruling that the evidence was irrelevant. And because the evidence is not relevant, Harstad cannot establish how he was prejudiced by the court’s refusing to admit it.
See State v. Kelley, 64 Wn. App. 755, 764, 828 P.2d 1106 (1992) (“A trial court may be affirmed on any basis supported by the record and the law.”).
See State v. Garcia, 57 Wn. App. 927, 932, 791 P.2d 244 (holding that this court need not address deficiency prong where no prejudice shown), review denied, 115 Wn.2d 1010 (1990).
Matters outside the record cannot be considered on appeal. State v. Crane, 116 Wn.2d 315, 335, 804 P.2d 10, cert. denied, 501 U.S. 1237 (1991). If Harstad wishes to challenge his lawyer’s decision not to call a witness, then he must raise his claim in a properly supported personal restraint petition. McFarland, 127 Wn.2d at 335; see In re Pers. Restraint of Rice, 118 Wn.2d 876, 885-86, 828 P.2d 1086, cert. denied, 506 U.S. 958 (1992); RAP 16.4, 16.7.
Reference
- Full Case Name
- The State of Washington v. Ronald Dean Harstad
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- 38 cases
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- Published