      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GEORGE SAVANAH,                                   UNPUBLISHED OPINION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 Wn.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 Wn.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 Wn.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 Wn.2d 664, 669,

230 P.3d 583(2010)(quoting In re Pers. Restraint of Duncan, 167 Wn.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 Wn.2d 131, 135, 667 P.2d 68(1983)(citing State v. Goebel, 40

Wn.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 Wn.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 Wn. App. 521, 354 P.3d 13, rev. denied, 184 Wn.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 Wn.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
Wn.2d at 135-36 ("[t]he rule admits only such evidence as will establish that the complaint was
timely made"). See also Chenoweth, 188 Wn. 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 Wn. 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 Wn.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 Wn.2d 577, 591, 183 P.3d 267(2008)

(citing State v. Demerv, 144 Wn.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 Wn.2d 918, 934,

155 P.3d 125(2007)(citing State v. Scott, 110 Wn.2d 682, 687-88, 757, P.2d

492(1988)). "Manifest" requires a showing of actual prejudice. Id. (quoting State

v. Walsh, 143 Wn.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

Wn.2d 197, 206, 53 P.3d 17(2002)(citing State v. McFarland, 127 Wn.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 Wn.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 Wn.2d
252, 279, 149 P.3d 646(2006)(citing State v. Greiff, 141 Wn.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 Wn.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 Wn.2d at 335 (citations omitted).

        Affirmed and remanded to strike the improper condition of community

custody.8



                                                                              r"--
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.


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