                                                                                    COURT OF APPL'ALS
                                                                                         01VISM11 11

                                                                                  2013 MAR]2     AN 8: 3 9
                                                                                    ST

                                                                                    B)




    IN THE COURT OF APPEALS OF THE STATE OF WASHIN

                                         DIVISION. II

STATE OF WASHINGTON,                                               No. 42215 8 II
                                                                             - -


                               Respondent,

       V.




ARTHUR CHARLES SETH,                                         UNPUBLISHED OPINION




       HUNT, J. —Arthur      Charles Seth appeals his jury trial convictions for first degree child

rape and second degree rape. He argues that ( ) trial court erred when it admitted testimony
                                            1 the

about the victim's statements to her mother, sister, and a nurse practitioner; and ( 2)jury

instructions that used the victim"were a judicial comment on the evidence. Holding that
                           "

the trial court did not commit reversible error,we affirm. - " -

                                              FACTS

                                             I. RAPES


       In June 2008, 11 year old AMV accompanied her 14- old friend M to visit M's 41-
                        -                              year -
year old
     -     family   friend Arthur Charles Seth.   According to AMV, while they were at Seth's

residence, M sat on the couch, smoked marijuana, and drank alcohol with Seth; AMV sat on the

1 We use initials for the victim, her family members, and minor witnesses to preserve their
privacy.
No. 42215 8 II
          - -




nearby   bed and smoked    a   cigarette. After five to ten minutes, Seth got up from the couch;

pushed AMV down onto the bed, and forced her to engage in vaginal intercourse with him.

When AMV attempted to scream, he threatened to hurt her and her family if she was not quiet.

After the rape, AMV woke M,who had apparently passed out, and the two girls left. On the way

back to M's house, AMV told M about the rape; but AMV was unsure whether M heard her

because M    was   drunk and "
                             high."1     Verbatim Report of Proceedings (VRP) at 149. At M's

house, AMV called her mother for a ride. On the way home, AMV was more quiet than usual.

After this, AMV refused to speak to M,and their friendship ended.

         The day after the rape, AMV told her parents that Seth had made her feel

uncomfortable" by placing his hands on her shoulder and telling her she was "hot." VRP at
                                                                                 1

99, 114. But AMV did not tell them about the rape'because she was ashamed and unsure of how

her parents would react because they had disapproved of her friendship with M. Following this

incident, AMV became more argumentative at home and started to use drugs and drink alcohol,

to cut herself, to run away from home, to be truant from school, and to associate with gang

members.


         After a fight with her parents about two years later, AMV finally told her younger sister

SV that something " raumatic"had happened to her ( MV)during her last visit with M. 1 VRP
                  t                              A

at 90.   SV called their parents and told them what AMV had said.          When AMV's parents

returned, AMV told them that Seth had raped her. The family called the police. Although AMV

did not know Seth's name, she identified him in a " hoto laydown."1 VRP at 80.
                                                  p

         Pediatric nurse practitioner Marsha Stover examined AMV at the Arthur D. Curtis

Children's Justice Center. To determine whether AMV had any physical or psychological issues



                                                  F)
No. 42215 8 II
          - -



and whether she needed any counseling or psychological services, Stover asked AMV what had

happened.    AMV told her that M' uncle "
                                s "               had pushed her onto his bed, covered her mouth,

threatened to hurt her family, and raped her. Based on AMV's disclosures, Stover recommended

some physical tests and a "mental health assessment."2 A VRP at 202 03.
                                                       -            -

         AMV was diagnosed with post -traumatic stress disorder (PTSD),
                                                                      after which licensed

clinical social worker Kip Kryger treated her at a residential facility. During treatment, AMV

told Kryger that she had been raped when she was 11 -years old, describing the rape as she had

described it to Stover.   AMV also described the rape to clinical psychiatrist Dr. Linda Erica

Schmidt.


                                           II. PROCEDURE


         The State   charged   Seth with first   degree child   rape and second   degree   rape.   The


information also alleged that (1) child rape charge was a "predatory" offense because "the
                                 the

perpetrator of the crime was a stranger to the victim," (2) second degree rape victim was
                                                      and  the

under 15 years old at the time of the offense. Clerk's Papers (CP)at 46.

                                        A. Motions in Limine


         Seth moved to exclude AMV's disclosures to "her sister, her mother, her father, the

detective, the social worker and the psychiatrist" as inadmissible hearsay. CP at 49. He also

argued that this testimony could not be used to bolster AMV's credibility. The State responded

that ( ) did not intend to introduce any hearsay statements "other than the potential statements
     1 it

regarding statements for medical diagnosis or treatment specifically for psychological and

2
    M called Seth her " ncle"even though he was only a family friend. 2 B VRP at 304.
                      u                                                 -




                                                    3
No. 42215 8 II
          - -



psychiatric treatment" from Stover and Dr. Schmidt; and (2) s statements to Stover were
                                                           AMV'

intended for medical treatment and diagnosis, not to gather information for litigation. 1 VRP at

7.   The trial court "provisionally" ruled that Stover's testimony was admissible "under the

hearsay exception,"but it invited Seth to "convince [ it] otherwise" if he "came up with

something."1 VRP at 15 16.
                       -

        Seth also moved to exclude any cumulative testimony from "family members, social

worker, psychiatrist, officers regarding the complaining witness[`
                                                                s] reporting." CP at 50.

Denying this motion, the    trial court ruled this type of evidence admissible to "counter[   ] the

delayed reporting theory." 1   VRP at 28.    The trial court also ruled SV could not testify that

AMV had said she had been "raped" because that specific portion of her statement was

inadmissible hearsay. 1 VRP at 46.

                                             B. Trial


                                       1. State's evidence


                                            a. AMV


        AMV testified as described above. In addition, she testified that she told Stover, Kryger,

and Dr. Schmidt about the rape, her subsequent drug and alcohol use, and other behavioral issues

to facilitate her medical and psychological treatments.

                                              b. SV


        In addition to testifying about AMV's friendship with M and AMV's behavioral changes

around the time that friendship ended, AMV's sister, SV,testified about AMV's disclosure. The

State initially asked SV:




                                                rd
No. 42215 8 II
          - -



       Do you remember    a   time thatwell,did your sister ...
                                       —                          tell you anything -about
       anything happening to her or that she happened [sic],
                                                           traumatic happening to her,
       without   going into the details? Just do you remember if there was anyher
                                                                              —
       telling you anything traumatic happening [sic]to her?

1 VRP at 89. Seth objected on hearsay grounds. The State argued that this testimony was not

being introduced for the truth of the matter asserted. After the trial court reminded the State

about the order in limine, the State rephrased its question and asked SV if AMV had said "that

something traumatic had happened to her when she was out with her friend"M. 1 VRP at 90.

Seth did not object to this question; and SV responded that AMV had reported something

traumatic,"
          which had prompted her (SV)to call her parents and to tell them what AMV had

said. 1 VRP at 90.


                                        c. AMV'
                                              s mother


       AMV's mother testified about how AMV and M's friendship had changed after AMV's

last visit with M.   Soon after AMV's last visit with M, AMV's mother .noticed behavioral

changes in AMV; AMV had explained that she had realized that M was "not her true friend"or

 not her real friend because of the situation she had put her in." VRP at 114. When AMV's
                                                                 1

mother inquired further, AMV told her that (1)they "had stopped at the uncle's house," ( the
                                                                                     2)

uncle "
      had offered her [( MV)]
                       A    drugs and alcohol but she had not done it," (3) " had
                                              ".  "                   and  he

grabbed her shoulder and told her that she was hot." VRP at 114.
                                                    1

       When the State asked about SV's call, AMV's mother testified that SV had asked their

parents to come home because AMV " ad told her something that had happened to her and [SV]
                                 h

didn't know how to deal with it."VRP at 116. Seth did not object to this testimony. AMV's
                                1

mother further testified that when she and her husband arrived home, AMV was "very upset,




                                                5
No. 42215 8 II
          - -




distraught, crying, and] had
                    [            a   hard time   breathing "; " ctually physically threw up,"
                                                              a                             then "
                                                                                                 told

her parents] what had happened,"and said that she_felt "
                                                       shamed." 1                   VRP at 116 17. Seth
                                                                                               -


objected on hearsay grounds. The trial court allowed this testimony as "a statement of emotional

or physical condition."1 VRP at 117.

                                                  I Stover


       Nurse practitioner Stover testified that the purpose of AMV's physical examination was

to find.out what ha[ ]happened to [AMV] to assess for potential injuries" and to determine
                   d

how AMV was "coping"in both the physical and psychological sense. 2 A VRP at 191. When
                                                                    -

the State asked Stover what "specifically" AMV had said was her reason for being examined,

Seth objected on hearsay grounds. 2 A VRP at 191. The State responded that the trial court had
                                    -

already addressed this objection in limine. The trial court ruled that this evidence came "within a

hearsay exception"and allowed it. 2 A VRP at 191 92.
                                    -            -

       Stover then read from her report, which stated, without identifying the assailant, that

AMV had said, He pushed me on the bed. He covered up my mouth and then he threatened to
              "`

hurt my   family.   And I didn't want that to    happen, so   I went   quiet. "' 2 A VRP at 192. The State
                                                                                   -

then asked Stover if she used this information to determine whether AMV needed "
                                                                               counseling or

psychological services."2 A VRP at 192. Over Seth's relevancy objection, Stover testified that
                          -

this information was important because it allowed her to understand that "this event was very

traumatic for [ MV]." VRP at 193.
              A    2A-

          On cross -examination, Seth asked Stover to read her report's history from the child,"
                                                                         "

which stated:




                                                      Cel
No. 42215 8 II
          - -



               I   spoke   to [ AMV] after    speaking   to her mother.   I asked her what had
       happened to her and she seemed to hear well and she was well groomed and her
       speech was clear.
              And [AMV] tells me that she spent the night at [M' ]house, and she said
                                                                 s
       M]asked her uncle if she could go over there. And [ MV]said:
                                                            A
              They were smoking and drinking all day and her uncle asked me if I
       wanted pot, and I told him no. He got out of control.
              After we were done, I started crying and I told [M]what happened and she
       said he wouldn't do that.


2 A VRP at 199 200.
  -            -


                                                 e. Kryger

       Kryger testified that AMV had been diagnosed with PTSD and that during one therapy

session, she had reported "that she was raped at the age of eleven." 2 A VRP at 210 11. He
                                                                       -            -                    i



described in detail AMV's description of the rape and the events leading up to it, which

description was substantially consistent with AMV's trial testimony. Kryger explained that (1)

AMV's talking about what had happened to her was "critical"to her treatment, and (2)
                                                                                   many of

AMV's behavioral issues that arose after her friendship with M ended were consistent with

PTSD   following   a   traumatic   experience.   2 A VRP at 215.
                                                   -                Seth did not object to any of this

testimony.

                                              f. Dr. Schmidt


       Dr. Schmidt testified that (1)while examining AMV, she had asked if AMV had

experienced       significant stressor "; (2)
              any "                          AMV         had reported that "she was raped by an adult

male at the age of eleven who       was a   friend's uncle "; (
                                                              3) (Dr.Schmidt) needed
                                                                she                      to know this

information to form a medical opinion about AMV's condition; and (4) was not unusual for an
                                                                    it

11- old to delay reporting " exual trauma"for " number of years"due to feelings of shame
  year -                   s                  a

and guilt. 2 B VRP at 277, 282. Seth did not object to this testimony.
             -


                                                     7
No. 42215 8 II
          - -



                                         2. Defense evidence


       M testified that she and AMV had been inside Seth's residence for only a short time,

played some video games, and then went outside to play on a trampoline. She denied that Seth

had offered them marijuana or alcohol. M further testified that AMV had been within her sight

the entire visit, Seth did not rape AMV,and AMV had never told her that Seth had raped her.

       Seth denied having raped AMV or having threatened her family. He "vaguely"recalled

the girls' visit, but he denied having offered them alcohol or marijuana. 2 13 VRP at 329. He
                                                                            -

claimed that they had only watched some television together for a short time with his son

present, after which they all had gone outside to play on a trampoline.

                                         3. Jury Instructions
                                                 .

       Instruction 1 provided in part:

             A trial judge may not comment on the evidence. It would be improper for
       me to express, by words or conduct, my personal opinion about the value of
       testimony or other evidence. I have not intentionally done this. If it appeared to
       you that I have indicated my personal opinion in any way, either during trial or in
       giving these instructions, you must disregard this entirely.

CP at 95 96 (nstruction 1).
         - I

       Instruction 12 provided in part:

               You will also be given special verdict forms for each charge. If you find
       the defendant not guilty of a charge, do not use the special verdict form for that
       charge. If you find the defendant guilty of a charge, you will.hen use the special
                                                                     t
       verdict form for that charge and fill in the blank with the answer "yes"or "no"
       according   to the decision you reach.    In order to answer a special verdict form
       yes," must unanimously be satisfied beyond a reasonable doubt that " es"is
           you                                                            y
       the correct answer.
               The special verdict forms will ask you to answer these questions:
               Count 1 - was the offense predatory?
               Count 2 -   Was the victim less than fifteen years of age at the time of the
        offense.
No. 42215 8 II
          - -




CP at 107 (Instruction 12)emphasis added). Consistent with this instruction, the special verdict
                           (

form for count 2 provided in part:

               This special verdict is to be answered only if the jury finds the defendant
       guilty of Rape in the Second Degree as charged in Count 2.
               We, the jury,return a special verdict for the offense charged in Count 2 by
       answering as follows:
               QUESTION: Was the victim less than fifteen years of age at the time of
       the offense?


CP at 113 (emphasis added).

       Instruction 13 provided:

               Predatory"means that the perpetrator of the crime was a stranger to the
       victim. "Stranger"means that the victim did not know the offender twenty four
                                                                                  -
       hours before the offense.


CP at 108 ( Instruction   13) emphasis added). Seth.neither proposed any instructions nor
                              (

objected to any of the trial court's instructions. The jury found Seth guilty of both offenses and

answered yes to the special verdicts for both counts. Seth appeals.

                                          ANALYSIS


                                     I. AMY'S DISCLOSURES


       Seth first argues that the trial court denied him a fair trial when it ( allowed Stover to
                                                                              1)

testify about AMV's statements during her physical examination, which Seth characterizes as a

forensic examination" rather than for purposes of medical treatment; and (2)allowed AMV's

mother and sister to repeat AMV's rape allegations. Br. of Appellant at 18. The State responds

that (1) s testimony about AMV's statements to her was admissible under ER 803( )(
        Stover'                                                            4) a as

statements for medical diagnosis or treatment; 2) s statements to SV and her mother were
                                               ( AMV'

admissible under ER 803( )(
                    3) a as statements of then -existing mental, emotional, or physical


                                                6
No. 42215 8 II
          - -




condition; and (3)even if admission of these statements was error, it was harmless. We agree

that any potential error in allowing Stover, AMV's mother, and SV to testify. about AMV's
disclosures    was   harmless in   light of   the other    testimony   in this   case.   Therefore, we do not

address whether this testimony was inadmissible hearsay.

         We review the trial court's evidentiary rulings for abuse of discretion. State v. Ellis, 136

Wn. d 498, 504, 963 P. d 843 (1998).A court abuses its discretion when its evidentiary ruling
  2                  2

   manifestly unreasonable, or exercised
is "`                                            on   untenable   grounds, or    for untenable   reasons "'   or if


no reasonable person would take the view adopted by the trial court."State v. Castellanos, 132

Wn. d 94, 97, 935 P. d 1353 (1997)citing State v. Huelett, 92 Wn. d 967, 969, 603 P. d 1258
  2                2               (                            2                  2

1979)).
      Evidentiary error is grounds for reversal only if it results in prejudice. State v. Neal,
144 Wn. d 600, 611, 30 P. d 1255 ( 2001).
      2                 3                                  An error is prejudicial if, within reasonable
                                                           "                           `

probabilities, had the error not occurred, the outcome of the trial would have been materially

affected. "'   Neal, 144 Wn. d at 611 (quoting State v. Smith, 106 Wn. d 772, 780, 725 P. d 951
                           2                                         2                  2

1986)). a trial court's erroneous admission of hearsay statements is harmless when the jury
     And

has heard     substantially   similar   testimony without objection. State v. Weber, 159 Wn. d 252,
                                                                                           2

276, 149 P. d 646 (2006)quoting Ashley v. Hall, 138 Wn. d 151, 159, 978 P. d 1055 (1999)),
          3              (                            2                  2

cert. denied, 551 U. . 1137 (2007).
                   S


3
    State v. Downing, 151 Wn. d 265, 272, 87 P. d 1169 (2004) quoting State ex rel. Carroll v.
                            2                 3               (
Junker, 79 Wn. d 12, 26, 482 P. d 775 (1971)).
             2                2
4
  See also State v. Dixon, 37 Wn. App. 867, 874 75, 684 P. d 725 (1984) admission of written
                                                 -          2             (
statement as excited utterance was error but was harmless because "[ he trial judge heard
                                                                       t]
essentially the same details testified to by [the victim] as were included in the [erroneously
admitted] written statement. ").



                                                          10
No. 42215 8 II .
          - -




         Despite his claim of reversible error in the trial court's admission of AMV's statements

about the rape to her mother, sister, and Stover, Seth does not challenge the trial court's

admission of Kryger's or Dr. Schmidt's testimonies about AMV's disclosures of the rape to

them. Kryger's and Dr. Schmidt's testimonies about AMV's disclosures were, at the very least,

the same as Stover's, s mother's, SV's testimonies. Moreover, Kryger's testimony
                    AMV'        and

was much more detailed than the challenged testimonies and it was substantially similar to

AMV's non -
          hearsay trial testimony. We hold, therefore, that Stover's, s mother's,
                                                                    AMV'        and
SV's brief, less detailed testimonies about AMV's disclosures were clearly harmless.

                                  II. NO COMMENT ON EVIDENCE


         Seth next argues that the trial court commented on the evidence in giving jury

instructions 12 and 13 and the special verdict instruction for the second degree rape charge

because   they presupposed   that AMV   was a   victim of   a   crime,which was a question for the jury.




    We also note that Seth himself elicited the more detailed testimony about AMV's disclosure to
Stover.

6
  Seth relies on State v. Carlin, 40 Wn. App. 698, 700 P. d 323 (1985),
                                                                2               overruled on other
grounds by City ofSeattle v. Heatley, 70 Wn. App. 573, 854 P. d 658 (1993),
                                                                  2              review denied, 123
Wn. d 1011 (1994).Carlin is not instructive here. In Carlin, a police dog handler testified that
    2                                                                     -
his dog found the defendant because it had followed a "fresh guilt scent."Carlin, 40 Wn. App.
at 700. The court held that this statement,.p]
                                            "[    articularly where such an opinion is expressed by
a government official," could improperly influence the fact finder. Carlin, 40 Wn. App. at 703.
But Carlin involved a statement from a witness that, taken in context, implied that the witness
believed the defendant was guilty of the charged offense. Here, in contrast, the context in which
the trial court gave the instructions did not in any way suggest that the trial court believed Seth
was guilty; instead, they were given in a context that required the jury to have found Seth guilty
before it considered those instructions.




                                                   11
No. 42215 8 II
          - -




Assuming, without addressing or deciding, that Seth can challenge these instructions for the first

time    on   appeal,this argument fails.
             A] y remark that has the potential effect of suggesting that the jury need not consider
              n

an element of an offense could qualify as judicial comment:"State v. Levy, 156 Wn. d 709, 721,
                                                                                 2

132 P. d 1076 (2006).
     3

                    Article IV, section 16 of the Washington Constitution provides: Judges
                                                                                    "
             shall not charge juries with respect to matters of fact, nor comment thereon,but
             shall declare the law."Through this provision, the framers of the constitution
                                                               "
             could not have more explicitly stated their determination to prevent the judge
             from influencing the judgment of the jury on what the testimony proved or failed
             to prove."Bardwell v. Ziegler, 3 Wash. 34, 42, 28 P. 360 (1891);   accord State v.
             Jacobsen,  78 Wn. d 491, 495, 477 P. d 1 ( 1970). A judge comments on the
                                2                    2
             evidence if the comment suggests the judge's attitude toward the merits of the
             case or the judge's evaluation relative to the disputed issue. State v. Lane, 125
             Wn. d 825, 838, 889 P. d 929 (1995).It is thus error for a judge to instruct the
                2                     2
         jury     that "matters of fact have been established    as   a   matter of law." State v.

             Becker, 132 Wn. d 54, 64, 935 P. d 1321 (1997).
                           2                2

State    v.    Zimmerman, 130 Wn. App. 170, 174, 121                  P. d 1216 ( 2005),remanded for
                                                                       3

reconsideration on other grounds, 157 Wn. d 1012 (2006).Judicial comments are presumed to
                                        2                "

be prejudicial, and the burden is on the State to show that the defendant was not prejudiced,

unless the record affirmatively shows that no prejudice could have resulted."Levy, 156 Wn. d at
                                                                                         2

723.


             Contrary to Seth's assertion, neither Instruction 12 nor the special verdict instruction for

count 2 presupposed that AMV was a victim of a crime or in any way removed this question of

fact from the jury's consideration. Rather both instructions clearly advised the jury that it was to


7
    See RAP 2. (
            a).
             5




                                                      12
No. 42215 8 II
          - -




address the special verdict about the "victim['
                                             s]" if it first found Seth guilty of the
                                                age only

charged crime. CP at 107, 113. To find that Seth had committed a charged crime, the jury had

to find that there was a victim. See CP at 102 (Instruction 7)requiring the jury to find that Seth
                                                               (

had sexual intercourse with AMV and that AMV was under 12 years old at the time and was at

least 24 months younger than Seth),104 (Instruction 9)requiring the jury to find that Seth had
                                                       (

engaged    in sexual intercourse   by   forcible   compulsion   with   AMV). These   instructions did not


convey any personal opinion on the part of the trial court about whether AMV was the victim of

a crime; nor did they suggest that the jury was relieved of its burden of considering . hether
                                                                                      w

AMV was the victim of a crime.


          Similarly, Instruction 13 neither constituted a judicial opinion about whether AMV was a

victim of a crime nor suggested that the jury was relieved of its burden of deciding whether

AMV was the victim of a crime. Rather Instruction 13 simply defined (1)the special verdict

term "[   p]
           redatory" as meaning "that the perpetrator of the crime was a stranger to the victim,"

and (2)     "[ trger" as meaning "that the victim did not know the offender twenty four hours
            s]                                                                      -

before the offense."CP at 108 (Instruction 13)emphasis added).In providing these definitions,
                                               (

this instruction stated merely that if and when a predatory or stranger-
                                                                       related crime occurs, it is

the relationship of the perpetrator and the victim that is important and that it is the jury that must

determine whether they were strangers. Furthermore, the instructions as a whole made clear that

the jury was to apply these definitions only after it first determined that Seth had committed a




                                                      13
No. 42215 8 II
          - -




crime and that thus there was a victim.. hold, therefore, that the challenged instructions were
                                       We

not erroneous.

         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

040,
2.6.it is so ordered.
  0




                                                  Hunt, J.    1 ''
We concur:




J hanson, A. .
          J.
           C


Bjoon




8
    Even if these instructions could be viewed as comments on the evidence, the record shows that
any error   was   harmless.  The trial court instructed the jury on the elements of each offense
without using the term " ictim." CP at 102, 104 (Jury Instructions 7, 9).
                         v          See                                       And, as we explain
above, the three instructions Seth now challenges were clearly to be considered by the jury only
if and after it had determined that Seth had committed a crime. Thus, even if the challenged
instructions had been improper, their use of the term " ictim"in this context was not prejudicial.
                                                       v
See State v. Alger, 31 Wn.App. 244, 248 49,640 P. d 44, review denied, 97 Wn. d 1018 (1982)
                                            -         2                          2
trial court's single reference to the prosecuting witness as "the victim"when advising the jury of
a stipulation as to the marital status of the victim and defendant was harmless when viewed in
the context of the entire trial). Furthermore, the trial court instructed the jury that it must
disregard any apparent judicial comment on the evidence; and we presume that the jury follows
the trial court's instructions. State v. Stein, 144 Wn. d 236, 247, 27 P. d 184 (2001). Taken
                                                        2                  3
together, these circumstances show that the alleged comment on the evidence, even if error, was
harmless.




                                                 14
