       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                 No. 69508-8-I
                     Respondent,
                                                 DIVISION ONE
             v.



JON A. DELDUCA,1                                 UNPUBLISHED OPINION


                     Appellant.                  FILED: April 21, 2014


       Becker, J. — Defending against a charge of child molestation, Jon Del

Duca's trial counsel decided not to introduce evidence of the victim's prior

statement suggesting several instances of sexual contact which was inconsistent
with her trial testimony describing a single incident. This was neither deficient

nor prejudicial. Counsel did intend to impeach the victim with a prior inconsistent
statement about a different matter but failed to lay a proper foundation to allow

admission of extrinsic evidence of the statement. Nevertheless, the record does

not demonstrate that Del Duca was prejudiced. We affirm the conviction.

                                      FACTS


       For several days in August 2010, Jon Del Duca was working on Daniel

Andrews's lakefront property helping to repair a concrete dock. Andrews lived


       1We use the spelling of Del Duca's name adopted by the parties in the
briefing and consistent with his signature.
No. 69508-8-1/2




next door to a couple and their two children, seven-year-old K and four-year-old

C. Curious about the work Del Duca and Andrews were doing, K and C would

occasionally stand by the waist-high fence separating the properties to watch.

       When K's mother was helping her get ready for soccer practice one

evening during this time, K told her mother that Del Duca had touched her. She

demonstrated how Del Duca had reached over the fence, tickled her under her

chin, reached for her armpit, then moved his hand over her clothing across her

chest, abdomen, and finally between her legs. K's mother encouraged her to tell

her father what had happened. The following day, K did so.

       K's father talked to the neighbor, who in turn told Del Duca he could no

longer work there. Del Duca approached K's parents to discuss the matter, and

K's father confronted him. Del Duca denied touching the children and left the

premises.

       Approximately two months later, in October 2010, K's father encountered

Del Duca at a neighborhood store. When Del Duca drove away from the store in

his motorhome, K's father followed him and simultaneously called the police. Del

Duca was eventually able to elude K's father, but the State later arrested and

charged him with first degree child molestation based on the alleged sexual

contact with K.2




       2The State also charged Del Duca based on alleged similar sexual contact with
K's brother C. The jury acquitted him on that count. We therefore refer to facts involving
that count only insofar as they are relevant to the charge involving K.

                                            2
No. 69508-8-1/3




       Before trial, both a child interview specialist and defense counsel

interviewed K. During her interview with the child interview specialist, K initially

said Del Duca touched her "two or three times." Report of Proceedings at 86.

But after describing the touching in detail, she said it only happened "that one

time." Report of Proceedings at 94.

       At trial, K described a single touching incident. In addition to K's

testimony, the court admitted evidence of her disclosures to her parents and her

statements to the child interview specialist.

       Del Duca testified on his own behalf. He said he observed the children

watching him work, reported briefly socializing with them several times during the

course of the project, but denied touching them.

       The jury convicted Del Duca of molesting K. The court imposed an

indeterminate sentence with a minimum term of 68 months and a maximum term

of life imprisonment. He appeals.

                   INEFFECTIVE ASSISTANCE OF COUNSEL

       When defense counsel cross-examined K, he did not ask about the

number of incidents that occurred nor about any inconsistent statements she had

made about the number of times Del Duca touched her. However, during the

presentation of its case, the defense sought to present the testimony of the

defense investigator who could testify about K's statements during her interview

with defense counsel. Specifically, the defense wanted to admit two statements

about the number of times K was touched by Del Duca. The first was K's
No. 69508-8-1/4




statement to defense counsel that the "first time it happened" she told her

parents, suggesting there were additional later occasions. Clerk's Papers at 117.

The second was K's statement that the touching happened on a "daily basis."

Clerk's Papers at 126.

       The defense also sought to admit two prior statements about conduct K

described only during the interview with defense counsel. During the interview, K

said that when Del Duca was working next door, she and her brother "wanted to

go outside and jump in the lake and stuff. But [Del Duca] would jump in too, and

he would like follow us wherever we went." Clerk's Papers at 123. K also said

that one time, Del Duca "pop[ped] out of the bush and then he started like

touching me and [C], and I just about screamed for my dad, and then he almost

like covered my mouth so where the point I couldn't breathe." Clerk's Papers at

125.

        During cross-examination, defense counsel asked K whether she

remembered talking to him before trial. Then, counsel asked K whether there

was ever an occasion when Del Duca jumped in the lake and followed her when

she was swimming. She said no. Counsel also asked K whether Del Duca ever

jumped out of a bush and tried to cover her mouth, and whether she

remembered saying that he did that. Kalso denied this.3




        3 K also said in the defense interview that her brother told her that Del Duca touched him
about five or six times. Clerk's Papers at 133. But because K did not indicate at trial or in her
interviewwith the child interview specialist any specific number of times she believed Del Duca
touched her brother, there was no inconsistency.
                                                 4
No. 69508-8-1/5




        The court ruled that only two of K's prior statements were admissible: her

statement about the "first time it happened," and her statement about Del Duca

jumping out from a bush. The out-of-court statements were otherwise

inadmissible because K had not been confronted with them or given an

opportunity to explain or deny making the inconsistent statements. In

accordance with this ruling, the defense submitted, through its investigator's

testimony, K's prior statement describing the bush incident. Counsel expressly

declined to submit the evidence regarding K's statement about the "first time."4

        Del Duca contends that he was deprived of effective representation of

counsel. He points out that although counsel wanted to impeach K with evidence

of several prior statements, he was largely unable to do so because he failed to

follow the proper procedure under ER 613(b) to admit the evidence. Del Duca

argues that counsel thereby lost a critical opportunity to challenge K's credibility.

        To establish ineffective assistance of counsel, a defendant must show

deficient performance and resulting prejudice. Strickland v. Washington. 466

U.S. 668, 687, 104 S. Ct. 2052, 80 L .Ed. 2d 674 (1984). Deficient performance

occurs when counsel's performance falls below an objective standard of

reasonableness. State v. Stenson. 132 Wn.2d 668, 705-06, 940 P.2d 1239



        4 Itappears that the trial court determined that this statement was inconsistent with K's
testimony that the touching happened once but did not actually rule that a proper foundation was
laid to admit the statement under ER 613. Nevertheless, at the end of the colloquy when
restating the court's ruling, the prosecutortwice stated that K's statement about the "first time"
was admissible. The court did not correct the State's interpretation of the ruling. Defense
counsel expressly informed the court that despite the determination of admissibility, he would not
ask about K's reference to the "first time."
                                                  5
No. 69508-8-1/6




(1997), cert denied, 523 U.S. 1008 (1998). Prejudice occurs if, but for the

deficient performance, there is a reasonable probability the outcome of the

proceedings would have been different. State v. McFarland. 127 Wn.2d 322,

335, 899 P.2d 1251 (1995). There is a strong presumption of effective

assistance, and Del Duca bears the burden of demonstrating the absence in the

record of a strategic basis for the challenged conduct. McFarland. 127 Wn.2d at

335-36.


        To impeach a witness with a prior inconsistent statement under ER

613(b), the witness must be given an opportunity to admit or deny the statement

and to explain it.5 This can be done either before or after the extrinsic evidence

is introduced. State v. Horton. 116 Wn. App. 909, 916, 68 P.3d 1145 (2003). If

the witness is not asked about the statement during direct or cross-examination,

impeachment may still be accomplished at a later point so long as arrangements

are made for the witness to be recalled. Horton, 116 Wn. App. at 915-16.

        With respect to the prior inconsistent statements about the number of

times sexual contact occurred, counsel was permitted to introduce some

evidence but declined to do so. Although K's prior statements about the number

of incidents demonstrated inconsistency and could have impacted the jury's

assessment of credibility, there was also a significant risk that the jury could have

believed that Del Duca touched K in a sexual manner multiple times although K


       5 ER 613(b) states: "Extrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless the witness is afforded an opportunity to explain or deny the same and the
opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of
justice otherwise require."
                                                  6
No. 69508-8-1/7




was able to specifically recall and testify about only one incident. We infer that

counsel's decision was strategic and there were legitimate tactical reasons not to

introduce the evidence. We can see no reason why counsel would have made a

different decision with respect to K's statement about touching on a "daily basis"

had the court ruled that statement was admissible. Performance is not deficient

if counsel's conduct can be characterized as a legitimate trial strategy. State v.

Kvllo. 166 Wn.2d 856, 863, 215 P.3d 177 (2009). Del Duca cannot demonstrate

that counsel's performance was deficient or that he suffered prejudice.

       In contrast, it is clear from the record that counsel wanted to impeach K

with her prior statement about Del Duca following her into the lake. It is also

clear that counsel believed he had properly laid the foundation under ER 613(b)

by asking K if this actually happened. He did not, however, directly refer to the

prior statement nor provide K with an opportunity to explain or deny it, as

required by the rule. Nor did counsel reserve the right to recall K to preserve the

opportunity to lay the foundation at a later point.

       Nevertheless, even assuming for the sake of argument that it was

deficient performance for counsel to fail to ask the appropriate question in order

to properly lay the foundation to admit K's prior statement in furtherance of this

impeachment strategy, Del Duca was not prejudiced. The circumstances here

are unlike those present in Horton, where counsel's failure to follow the

procedural requirements of ER 613(b) was clearly detrimental to the defendant's

case. Horton, 116 Wn. App. at 916. In Horton, the victim had testified both on
No. 69508-8-1/8




direct and in cross-examination that prior to her medical examination, she had

not engaged in sexual intercourse with any person other than the defendant.

This evidence tended to show that the medical finding of "penetrating trauma to

the hymen" must have been caused by the abuse allegedly perpetrated by the

defendant. Horton, 116Wn. App. at 911.

       But the victim had previously admitted to two people that she had been

sexually active with former boyfriends. Neither counsel asked the victim about

those prior statements. Therefore, the defense was not permitted to call the

witnesses to testify about the statements. There was no reasonable strategic

reason not to present evidence impeaching the victim on a critical evidentiary

matter, and because the failure to offer the evidence was prejudicial, the Court of

Appeals reversed Horton's conviction. Horton. 116 Wn. App. at 922.

      The impeaching evidence in this case did not directly undermine any

critical piece of evidence. There was also a significant amount of evidence

before the jury that had bearing on K's credibility by showing her inconsistency

regarding various details about the incident. We are not convinced that the

introduction of extrinsic evidence of any of the prior statements at issue would

have actually benefitted Del Duca. Certainly the record does not demonstrate

that, but for counsel's alleged deficiency, the outcome of the trial would have

been different.




                                         8
No. 69508-8-1/9




                      STATEMENT OF ADDITIONAL GROUNDS

       Del Duca raises numerous issues in a pro se statement of additional

grounds. He claims that his constitutional rights were violated because he was

not indicted by a grand jury. But under Washington Constitution article I, section

25, the State may prosecute an individual for offenses by either information or

indictment. Contrary to Del Duca's argument, this provision of the Washington

Constitution is not at odds with the Fifth Amendment to the United States

Constitution. State v. Nordstrom. 7 Wash. 506, 508, 35 P. 382 (1893), affd, 164

U.S. 705, 17 S. Ct. 997, 41 L. Ed. 1183 (1896). Washington courts have also

determined that a grand jury indictment is not required to assure due process of

the law. See State v. Nq. 104 Wn.2d 763, 774-75, 713 P.2d 63 (1985).

      Del Duca also argues that he cannot be required to serve more than the

minimum term of 68 months because his judgment and sentence includes a

provision stating that the "total" confinement imposed is 68 months. Clerk's

Papers at 196. However, because Del Duca was convicted of child molestation

in the first degree, the court imposed an indeterminate sentence under RCW

9.94A.507. Thus, the court had to impose a maximum term and a minimum

term. RCW 9.94A.507(3)(a). The minimum term had to be "within the standard

sentence range for the offense," which was in this case 51 to 68 months'

confinement. RCW 9.94A.507(3)(c)(i), .510. The maximum term had to be "the

statutory maximum sentence for the offense," which was life imprisonment.

RCW 9.94A.507(3)(b); RCW 9A.20.021(1)(a); RCW 9A.44.083.
No. 69508-8-1/10




      Before the end of the Del Duca's minimum term, the Indeterminate

Sentence Review Board will hold a hearing to determine whether to release him

into community custody for the time left under the maximum term or impose a

second minimum term of incarceration. RCW 9.95.420(3)(a); In re Postsentence

Review of Hudqens, 156 Wn. App. 411, 421-22, 233 P.3d 566 (2010). Such

reviews have the potential to extend imprisonment to the maximum sentence.

See State v. Brundage, 126 Wn. App. 55, 63, 107 P.3d 742 (2005) (discussing

indeterminate sentencing as previously codified under former RCW 9.94A.712),

review denied, 157 Wn.2d 1017 (2006). The reference to "total" confinement in

this context refers only to the initial minimum term imposed in the judgment and

sentence.

       Del Duca raises a number of other procedural and evidentiary issues. But

his arguments are conclusory and are based on inaccurate and self-serving
interpretations of the facts in the record. State v. Buqai, 30Wn. App. 156, 158,
632 P.2d 917, review denied, 96 Wn.2d 1023 (1981); State v. King, 24 Wn. App.

495, 505, 601 P.2d 982 (1979). He makes other arguments that fail to
adequately inform the court of the nature and occurrence of the alleged errors.
See RAP 10.10(c); State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008).
None of these arguments merit further review. In addition, to the extent that Del
Duca's allegations of ineffective assistance of counsel, prosecutorial misconduct,
and claims related to his arrest appear to involve matters outside the trial court



                                         10
No. 69508-8-1/11




record, the claims of error are not reviewable on direct review. See McFarland,

127Wn.2dat335.

      Affirmed.




WE CONCUR:




             «/V-

                                                                1




                                       11
