                                                                 FILED 

                                                              AUGUST 7, 2014 

                                                        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. 31114-7-III
                                                )
                       Respondent,              )
                                                )
                v.                              )         UNPUBLISHED OPINION
                                                )
JOEL GONZALEZ,                                  )
                                                )
                       Appellant.               )

        CULP, J.• -   Joel Gonzalez appeals his three juvenile adjudications for first degree

rape of a child, arguing the trial judge's comments regarding the behaviors of child

victims of sexual abuse constituted improper judicial notice of facts in violation of

ER 201 as well as testimony from the judge contrary to ER 605. He also contends the

trial court erred in excluding a defense witness and that cumulative error deprived him of

a fair trial.




      • Judge Christopher Culp is serving as judge pro tempore of the Court of Appeals
pursuant to RCW 2.06.150.
No. 31114-7-II1
State v. Gonzalez


       Finding no error, we affirm.

                                             FACTS

       Joel Gonzalez (D.G.B. 8/27/98) was 13 years old when the State charged him with

three counts of first degree rape involving his younger male cousin, 1.G. (D.G.B.

3/29/03).1 The evidence showed that Joel and his cousins spent a significant amount of

time together and that Joel anally raped 1.0. at least three times when Joel and I.G. spent

the night together at their homes or their grandmother's house.

       Before trial, the State moved to exclude defense photographs and videos of Joel

interacting with I.G. and D.O. during family gatherings on the basis that they were

irrelevant. The State argued, "[t]he photos basically show children in the presence of

other people, and we know that children who are abused do not necessarily behave in a

manner that is obvious to us around their abusers. They don't necessarily cower in the

comer." Report of Proceedings (RP) at 9. The defense responded that the photographs

and videos were necessary to impeach the testimony of witnesses concerning 1.0.'s and

D.G.'s fear of Joel and to give the court the entire picture of the relationship between the

cousins.




       1 After   trial, the juvenile court dismissed a charge of attempted first degree rape of

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No. 31114-7-111
State v. Gonzalez


       The court granted the State's motion, concluding that the photographs and video

were irrelevant to whether the alleged rapes occurred. The court explained that children

do not necessarily know it is wrong when they are raped or molested, and the fact that

I.G. and D.G. were comfortable around Joel at family gatherings had no bearing on

whether the rapes occurred.

       At trial, I.G., who was nine years old at the time oftrial, testified that Joel put his

"private part" in I.G.'s anus on more than five or six occasions. RP at 48. He testified

that this happened when Joel spent the night at his house or at their grandmother's house.

I.G.'s sister, D.G., who was seven years old at the time of trial, testified that she saw Joel

put his "private part" in I.G.'s "private part." RP at 146.

       Karla Arroyo, I.G. and D.G.'s mother, testified that in June 2011, Joel spent the

night with I.G. and D.G. at her house. Ms. Arroyo testified that she got up in the night to

go to the bathroom and checked on Joel and I.G. She saw that they "both had their boxers

down" and "Joel was spooning [I.G.]." RP at 163. Ms. Arroyo woke Joel, who denied

that anything inappropriate happened.

       Part of the defense theory was that the rapes did not occur because I.G. did not

show visible signs of fear in the presence of Joel. Maria Saldivar Guiterres, I.G.'s great


a child against a female cousin, D.G. (D.O.B. 11117/04).

                                               3
No.31114-7-III
State v. Gonzalez


aunt, testified that she observed Joel and LG. interact on numerous occasions and never

saw LG. exhibit any fear or unhappiness around Joel.

       Xochitl Arroyo, Joel's mother, testified that Joel and LG. got along together and

that she never observed LG. exhibit any fear around Joel. Josephina Arroyo, Joel's and

LG.'s grandmother, also testified that she never saw LG. express any fear or discomfort

around Joel. She stated the boys are "wonderful together" and that "[LG.] is happy to be

with Joel." RP at 362.

       Joel testified that he never attempted to have anal intercourse with I.G. or touch

him in a sexually inappropriate manner.

       On the last day of trial, Joel sought to introduce the expert testimony of Susan

Huett, his counselor. Defense counsel explained that Ms. Huett had worked with 200 to

250 child sexual abuse victims and that she would testifY that virtually all juvenile victims

of sexual abuse showed fear in the presence of the perpetrator.

       The court did not permit Ms. Huett to testifY, finding the proposed testimony was

not sufficiently probative. It stated, "it's absolutely undisputed in the case that [LG.]

dearly loves his cousin, Joel. He loves to be around him. . .. That is undisputed in the

record. I don't need an expert to tell me that." RP at 383.




                                              4

No.31114-7-III
State v. Gonzalez


       The juvenile court adjudicated Joel guilty of three counts of first degree child rape.

Joel appeals the adjudications.

                                        ANALYSIS

       Judicial Notice/Testimony. We first address whether the trial court became a

witness or improperly took judicial notice of certain facts during the bench trial. Joel

argues that the trial judge's comments regarding the behaviors of child victims of sexual

abuse constituted both improper judicial notice of facts in violation of ER 201 and

testimony from the judge contrary to ER 605.

       Initially, we note that Joel did not object to the trial court's statements on grounds

ofjudicial notice and the trial court did not characterize its ruling as based on judicial

notice. We review an issue raised for the first time on appeal only ifit involves a

"manifest error affecting a constitutional right." RAP 2.5(a)(3). To be manifest, Joel

must show that the asserted error had practical and identifiable consequences at trial.

State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011) (quoting State v. O'Hara, 167

Wn.2d 91,99,217 P.3d 756 (2009)). Joel does not identifY an error of constitutional

magnitude, provide a supporting constitutional theory, or show how the alleged error

actually affected his rights at trial. Moreover, evidentiary issues are not errors of

constitutional magnitude. State v. Powell, 166 Wn.2d 73, 84,206 P.3d 321 (2009). The


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No. 311l4-7-II1
State v. Gonzalez


issue is not properly before us.

       However, even if we address Joel's arguments, they fail. Joel specifically points to

the following comments as evidence of improper judicial notice:

              Little kids don't know it's wrong when they're raped and
       molested.... [T]hey don't know when things are morally incorrect ....
              And so that they weren't afraid of or didn't mind being around or
       absolutely enjoyed Joel's company after either, after the alleged incidents
       ... doesn't really help me decide the case at all.

RP at 27.

       [G]iven the tender years of the victim, alleged victims in the case, it doesn't
       really prove anything one way or another to me that they are comfortable
       around him in family settings, especially playing video games.

RP at 29.

       [C]hildren rarely know or perceive or comprehend that anything is bad or
       wrong happening-they may not like it, they may find it uncomfortable, but
       from the moral code ... they usually don't have any hint or clue that there's
       anything wrong going on .
              . . . [H]ow can comfortability around the accused have any bearing
       on whether or not the allegations have occurred in the first place.

RP at 31-32.

      [1]t's absolutely undisputed in the case that [I.G.] dearly loves his cousin,
      Joel. He loves to be around him, he worships the ground he walks on, he
      looks at him as the older brother he does not have, but he testifies there's
      something that goes on after dark in closed doors, in private, that he doesn't
      like at all.

RP at 383.

                                             6

No. 31114-7-111
State v. Gonzalez


       [I]f something has become so commonplace that it happens every time you
       spend the night with somebody, you may not like it, it may not feel good,
       but who says you're going to be afraid of it?

RP at 449.

       Citing Elston v. McGlauflin, 79 Wash. 355, 140 P. 396 (1914), Joel first argues on

appeal that the judge inserted himself as a witness when he stated his theory that child

victims of sexual abuse rarely comprehend that anything bad or wrong is happening. He

argues the trial judge's statements were "based upon knowledge obtained independent of

the proceedings before the court," were integral to his judgment and, therefore, the

judgment must be reversed. Appellant's Br. at 28.

       Under ER 605, "[t]he judge presiding at the trial may not testifY in that trial as a

witness." In Elston, during a trial in which negligent construction of an apartment

building was at issue, the judge visited the site of the apartment building without the

knowledge of the parties or counsel. Elston, 79 Wash. at 359. On appeal, the court held

that the trial court's independent investigation denied the parties a fair trial because "[t]he

court unwittingly became a witness in the case, and in some degree, at least, based his

judgment upon his own independent experience and preconceived opinion." ld. at 360.




                                              7

No. 31114-7-111
State v. Gonzalez


       Elston is inapposite. The trial judge in this case did not conduct an independent

investigation or make his decision based upon independent experience. The court's

findings reflect that it based its decision upon the testimony ofI.G., D.G., and their

mother. Moreover, evaluated in context, the court's statements about the behavior of

child victims of abuse were not "testimony" under ER 605; they were merely part of its

explanations for evidentiary rulings regarding the admissibility of photographs of Joel

with his cousins and the propriety of allowing a defense witness to testify.

       Joel's judicial notice argument likewise fails. He contends, "[w]hether I.G.

reacted to the alleged hundreds of rapes in a manner consistent with the behavior of most

child victims of sexual abuse was an adjudicative fact that was not appropriate for judicial

notice." Appellant's Br. at 22-23. "Judicial notice" means "[a] court's acceptance, for

purposes of convenience and without requiring a party's proof, of a well-known and

indisputable fact." BLACK'S LAW DICTIONARY 923 (9th ed. 2009). ER 201(b) governs

the scope and process for taking judicial notice of facts that are "(1) generally known

within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned." "A

party is entitled upon timely request to an opportunity to be heard as to the propriety of

taking judicial notice and the tenor of the matter noticed." ER 201(e).



                                               8

No. 31114-7-111
State v. Gonzalez


       Contrary to Joel's argument, the trial court did not take judicial notice of disputed

facts. As just explained, the court's statements were part of its oral explanation for its

evidentiary decisions and did not provide the basis for its findings of fact or conclusions

oflaw. The court simply explained that evidence that 1.0. and D.O. were comfortable

around Joel in public had no bearing on whether the rapes occurred. In this context, we

conclude the court did not take judicial notice of disputed facts.

       The trial court did not testify or take judicial notice of facts in violation of ER 605

or ER 201.

       Exclusion o[Expert Witness. Citing State v. Hutchinson, 135 Wn.2d 863, 959 P.2d

1061 (1998), Joel contends the trial court abused its discretion in excluding the testimony

of Ms. Huett. He contends the court's exclusion of Ms. Huett's testimony both prevented

the defense from rebutting the trial court's opinion regarding the behavior of child sex

abuse victims and "severely limited the defense's ability to call the credibility of the

State's witnesses into question in a case which depended entirely upon the testimony of

lay witnesses." Appellant's Br. at 31. He contends the court should have allowed the

State time to interview Ms. Huett and locate a rebuttal witness.

       We review a trial court's decision to admit expert testimony for an abuse of

discretion. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). A trial court


                                              9

No.31114-7-III
State v. Gonzalez


abuses its discretion when its decision is manifestly unreasonable or exercised on

untenable grounds. State v. Lamb, 163 Wn. App. 614, 631,262 P.3d 89 (2011), aff'd in

part, rev'd in part, 175 Wn.2d 121,285 P.3d 27 (2012). Where reasonable minds could

take differing views, the trial court has not abused its discretion. State v. Demery, 144

Wn.2d 753, 758, 30 P.3d 1278 (2001).

       Initially, we note that Joel did not argue at trial that the Hutchinson factors

warranted admission of Ms. Huett's testimony; instead, defense counsel sought to admit

the testimony as relevant for impeachment purposes. No error can be assigned to an

evidentiary ruling that the court did not address. See State v. Perez-Cervantes, 141

Wn.2d 468, 482, 6 P.3d 1160 (2000). Thus, he waives the argument on appeal.

       However, even if we were to consider the issue, Hutchinson is inapplicable here.

Hutchinson involved the propriety of excluding evidence as a sanction for a discovery

violation under erR 4.7. In deciding whether to impose sanctions, the court identified

four factors a trial court must consider before excluding testimony: (1) the effectiveness

ofless severe sanctions, (2) the impact on the evidence at trial, (3) the extent to which the

opposing party will be surprised or prejudiced by the evidence, and (4) whether the

violation was willful or in bad faith. Hutchinson, 135 Wn.2d at 882-83. Here, the trial

court did not exclude Ms. Huett's testimony as a sanction for a discovery violation; the



                                              10 

No. 31114-7-III
State v. Gonzalez


sole basis for exclusion was the court's detennination that the evidence was irrelevant.

Hutchinson does not apply.

       Next, Joel argues that Ms. Huett's testimony was relevant to rebut the court's

theory that child victims exhibit no fear around their abusers. He argues, "[e ]vidence of

the behavior of child victims of sexual abuse is relevant to whether or not the abuse

occurred and where necessary to rebut contrary theories explaining the behavior of the

alleged victim." Appellant's Br. at 33.

       Only relevant evidence is admissible. Under ER 401, evidence is relevant if it

makes "the existence of any fact that is of consequence to the detennination of the action

more probable or less probable than it would be without the evidence." Joel argues the

evidence was relevant under ER 702 because Ms. Huett's expert testimony would have

helped the court "understand whether or not the accuser's behavior is consistent with that

of victims of sexual assault." Appellant's Br. at 34.

       The court was not asked to address whether Ms. Huett's testimony satisfied

ER 702; it excluded the evidence as irrelevant under ER 401. It did not abuse its broad

discretion in doing so. Ms. Huett would have testified that in her experience, child

victims of sexual abuse typically show fear around their abusers. This evidence was of

marginal, if any, relevance as to whether the rapes occurred in this case. Admittedly,



                                             11 

No. 311l4-7-II1
State v. Gonzalez


numerous witnesses testified that LG. and D.G. did not show fear when they were around

Joel in public during family gatherings. However, the evidence established that the

sexual abuse occurred in private; thus, as the court correctly pointed out, the behavior of

LG. and D.G. in public was of little relevance in determining whether the rapes occurred.

Accordingly, Ms. Huett's proposed testimony would not have been particularly helpful to

the court. The trial court had a tenable basis for excluding the testimony.

       The trial court did not abuse its discretion by excluding Ms. Huett's proposed

testimony.

       Cumulative Error. Joel argues that cumulative error deprived him of a fair trial.

Under the cumulative error doctrine, we may reverse a defendant's conviction when the

combined effect of the trial errors effectively denies the defendant's right to a fair trial,

even if each error alone would be harmless. State v. Weber, 159 Wn.2d 252, 279, 149

PJd 646 (2006). But cumulative error does not apply where there are no errors or the

errors are few and have little or no effect on the trial's outcome. Id. Because there are no

errors here, cumulative error does not apply.




                                              12 

No. 31114-7-II1
State v. Gonzalez


       We affinn.

      A majority of the panel has detennined 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. 





WE CONCUR: 





Brown, A.C.J.




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