                                                                                                                        FILED
                                                                                                              C01-` RT OF APPEALS
                                                                                                                     LJ MS 1011 4 h




                                                                                                             2013 NOY 13     AM 11:   17


      IN THE COURT OF APPEALS OF THE STATE OF W

                                                DIVISION II


STATE OF WASHINGTON,                                             I                        No. 431:


                                       Respondent,


         V.




PETER TVEDT,                                                                     UNPUBLISHED OPINION




         PENOYAR, J. —        Peter Tvedt appeals his convictions for one count of second degree child

rape and one count of        intimidating   a witness.       He seeks a new trial because testimony from the

victim' s stepmother was admitted at trial under RCW 10. 58. 090, which our Supreme Court

found   unconstitutional.       Because admitting the evidence under RCW 10. 58. 090 was harmless

error, we affirm.



                                                       FACTS


1.       BACKGROUND


         At the time of the following events, Tvedt was staying with his daughter, Crystal Pittman,

Crystal'   s   husband, Jack Pittman,        and     Jack'   s       13- year   -old   daughter, HP,       in their home in


Spanaway.       On   February    22, 2011, HP did      not       have      school.     She testified that she awoke in the


living room to Tvedt speaking into her ear, telling her that he was going to sexually assault her.
After the assault, HP locked herself in the bathroom. Tvedt knocked on the door and said that if

she told anyone and he went to jail, he would " beat the shit out of her when he got out. Report

of   Proceedings ( RP) ( Dec. 8, 2011) at 201, 202.


           HP   noticed   that there   was a substance   later identified              as semen on   her   shirt.   She changed


                                                                     for               Tvedt                  and said   that he
her   clothes and pretended       that   she was   leaving                 school.             apologized
43112 -2 -II




would move out            if HP   wanted       him to.       She said that he should leave, and he left the house with


his belongings.


             HP then      called      her     aunt,    Joanna Naylor.                 After hearing that HP was emotionally

distraught, Naylor drove to the Pittman house with her friend Jennifer Buchanan. Naylor called

Jack'    and      Crystal,   who returned           home    and called          the   police.   Jack and Crystal then took HP to


the Child      Advocacy        Center for       a   forensic interview            and physical examination.             HP told both the


forensic investigator and a nurse practitioner that Tvedt had sexually assaulted her.

             After she had arrived at the Pittman' s, Naylor had placed H.P.' s shirt in a plastic bag,

which she gave to the police. Forensic DNA analyst William Dean tested the stain on HP' s shirt.
                                                                                                    2
The    stain   tested    positive as semen and             the DNA          matched     Tvedt' S.


             Tvedt     offered    a   different       version   of    the events.         Tvedt claimed that he had deposited


semen        on    a   towel   in the bathroom             after     masturbating in the            shower.         He claimed that HP


transferred the         semen     to her      shirt   in   an attempt       to frame him for            rape.     He alleged that she had


stolen a       hundred dollars from his               suitcase and was afraid              he   would      inform her     parents.   Tvedt


said that, after he caught her stealing, HP went to the bathroom, where he saw her holding the

towel.       Tvedt then decided to leave the house.                         Before leaving, Tvedt called Crystal to tell her

that    he    was      moving    out.        He also retrieved the towel from the bathroom, where it was in a

    ruffled"      condition.     RP ( Dec. 13, 2011)            at   461.       He threw the towel on the front seat of his car

and     drove to       a residence      in   Puyallup,      where     his   car remained until           trial.    On February 25, 2011,

the State charged Tvedt with one count of second degree child rape and one count of intimidating

a witness.




    For clarity' s sake we refer to the Pittmans by their first names. We intend no disrespect.
2
    Dean testified that the odds that it was not Tvedt' s semen were 1 in 870 quadrillion.
                                                                            2
43112 -24I




II.       PROCEDURE


          The State made a pretrial motion to admit allegations that Tvedt had attempted to rape

Crystal      when she was nineteen years old.       The trial court heard testimony from Crystal that this

incident     occurred when she was alone with        Tvedt watching television. He asked her to perform


oral sex and she refused.          He then attempted to force her head toward his lap, but she struggled

until   he   released   her.    At that point, Tvedt apologized and explained that he had been having

problems with Crystal' s mother. Crystal did not tell police about the incident, but she did tell her

best friend. Crystal testified that she allowed Tvedt to temporarily live in her house in 2011 only

because she wanted to believe that he had changed. Crystal did not initially tell the detectives on

the scene about the incident, but testified that this was because she was nervous and worried that

HP    would     be taken away from them.        The court ruled that Crystal' s testimony was admissible

under RCW 10. 58. 090.


            At trial, Tvedt testified in his own defense and alleged that he had attacked neither H.P.

nor     Crystal.     He said he was unaware, until February 26, that Crystal had ever made any

accusation against him.


             The jury found Tvedt guilty of one count of second degree child rape and one count of

intimidating       a witness.    The trial court sentenced him to 114 months to life on the first count and

20 months on the second count, to run concurrently.

                                                   ANALYSIS


             Tvedt   argues (   1) that the trial court erred by admitting Crystal' s testimony under RCW

 10. 58. 090 because that statute was declared unconstitutional in State v. Gresham, 173 Wn.2d

405, 269 P. 3d 207 ( 2012),          and ( 2) that the testimony was not alternately. admissible under ER

 404( b).     The State   concedes    that RCW 10. 58. 090 is   unconstitutional.   We agree with the parties

                                                         K?
43112 -2 -II




that the trial court erred by admitting Crystal' s testimony under RCW 10. 58. 090 but hold that the

error was harmless.


           Because the admission of a defendant' s evidence of other crimes is not an error of


constitutional magnitude, the admission is harmless if there is a reasonable probability that the

outcome of the trial would not have been materially different had the error not occurred. State v.

Kidd, 36 Wn.        App.     503, 507, 674 P. 2d 674 ( 1983).           In Gresham, the Supreme Court concluded


that the    admission of       the defendant'     s prior conviction was not        harmless   error.   173 Wn.2d at 434.


There, the remaining admissible evidence consisted solely of the victim' s testimony and the

victim' s    parents'    corroboration that the defendant had an opportunity to molest the victim.

Gresham, 173 Wn.2d               at   433.   Given the remaining evidence, the Gresham court held that " there

is a reasonable probability that absent this highly prejudicial evidence of Gresham' s prior sex

offense ...    the   jury' s   verdict would       have been materially        affected."   173 Wn.2d at 433 -34.


           By contrast, the admissible evidence in this case is considerably more persuasive than the

evidence      in Gresham.             First, there is HP' s testimony that Tvedt forced her to perform oral sex.

HP    also    reported     the    incident to her      parents,      Naylor,    a   forensic investigator,   and   a   nurse




practitioner       shortly     after    it happened.        Second, the DNA recovered from HP' s shirt was


positively identified as Tvedt' s by an overwhelming probability: Dean testified that the odds that

the   semen was not          Tvedt'     s were   1 in 870   quadrillion.   Finally, the version of events that Tvedt

offered      was   utterly incredible.           No reasonable juror would believe that 13- year -old HP just

happened to become aware of a substance on a towel in the bathroom, shrewdly discerned that

the substance was some of Tvedt' s semen, and then quickly conceived of a complicated plot to

wipe the semen on her own shirt and falsify a report of abuse by Tvedt to prevent him from

reporting her previous theft. Thus, the jury could see that Tvedt was making up a fanciful tale to
                                                                 9
43112 -2 -II




get out of           trouble.   Taken together, this evidence is overwhelming, and we conclude there is no

reasonable probability that the evidence of Tvedt' s actions toward Crystal affected the outcome

of       the trial.    Therefore, any error was clearly harmless and we need not examine the evidence

further       under     ER 404( b). 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

2. 06. 040, it is so ordered.




                                                                       enoyar,   J.


We concur:



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              Johanson, A.C. .

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