Appeal from Superior Court of King County. Docket No: 95-8-06879-2. Date filed: 04/16/96. Judge signing: Hon. Anthony P. Wartnik.
PER CURIAM. -- Christopher Mitten appeals his juvenile court conviction for first degree child molestation. He argues that the trial court abused its discretion in admitting certain of the victim's hearsay statements. He alternatively argues that defense counsel was ineffective for failing to renew her objection to the statements after the court tentatively ruled them admissible subject to the evidence developed at trial. Because the record confirms that counsel failed to renew the issue at trial, the evidentiary issue is waived and therefore need not be reached. As such, the only issue properly before this court is whether Mitten was denied effective assistance of counsel. In light of the ample evidence supporting his guilt, we reject that claim because Mitten cannot show that counsel's performance prejudiced him. We therefore affirm.
Mitten was charged alternatively with first degree rape of a child or first degree child molestation. Before trial, the State gave notice of its intent to rely upon the child sexual abuse hearsay exception set forth in RCW 9A.44.120. The juvenile court conducted a pretrial hearing to determine the admissibility of the victim's hearsay statements made to her mother, the responding police officer, the investigating detective and Patricia Hikitda, the nurse practitioner who examined her. Both sides stipulated to the 7-year-old victim's competency to testify and to the admission of the hearsay statements made to Hikitda.
After the victim testified but before any other testimony was elicited, the court analyzed the hearsay statements separately under the factors set out in State v. Ryan, *fn1 and tentatively found all the statements to be reliable including the victim's statement to her mother. That statement was identified as "he tried to put his privates in mine" in response to the mother's question, "what did he do to you?" Defense counsel objected to the statement's admission arguing that while the remaining Ryan factors were present, the question of whether the statement was spontaneously made "remains to be seen" because it could have been made in response to leading questions posed by the mother. The court ruled the statement admissible subject to the evidence developed at trial, indicating that if the nature of the mother's questioning proved to be different, counsel could renew her objection.
Based on the current state of the offer right now, I will find that that aspect has been met. If, in cross examination, it develops there were very pointed questions of a different character, and you wish to raise that spontaneity issue, again, since this is a bench trial, that should not be a problem for us.
The following evidence was presented at the fact-finding hearing. Mitten was a high school friend of the victim's older sister, Brandy. Mitten received permission to spend the night at the victim's home because his parents were out of town. The next morning, the victim went to the living room where Mitten was sleeping. According to the victim, Mitten told her he wanted to play a game. He then made a "tent" with her blanket on the floor and told her to get in. Mitten pulled his underwear down leaving only his shirt on. The victim stated she did not have her pajama bottoms on and that Mitten told her to take off her underwear. Mitten got on top of her. The victim told him "stop it" but "he wasn't stopping." She stated that she saw "his penis", that he "touched me in the private part" with it and that it felt "icky and gross." Mitten stopped when Brandy walked into the living room.
Brandy testified that when she walked into the living room, she saw Mitten under a blanket with his feet sticking out. The position of his feet indicated that he was lying on his stomach. She saw the blanket moving up and down in a "wavy motion" and heard Mitten say "'this is how you do it'." She walked over to Mitten and said "what are you guys doing"? Mitten "jumped off of [the victim]" and said "he was just rolling around[.]" Brandy lifted the blanket up and saw the victim pulling up her panties. Upset, Brandy went to her room. When she returned to the living room, Mitten was "pulling up his underwear." After telling the victim to go to her room, she told her mother about what she had witnessed.
The victim's mother testified that Brandy told her that she saw the victim and Mitten underneath a blanket, overheard Mitten say "'this is how you do it'" and saw him later putting on his underwear. While the two were talking, the victim then walked into the room. She asked the victim "what happened, did he try to put his privates in you? Do not lie to me. This is a very serious matter." The victim replied that Mitten had "tried to put his privates in her[.]" Defense counsel did not renew her earlier objection to the hearsay statement.
Patricia Hikitda testified that she examined the victim physically as well as interviewing her. She could not confirm or rule out genital penetration based on her physical examination of the victim. During her interview, the victim told Hikitda that Mitten "put his penis into mine." When she asked the victim what part of her body did he put his penis in, the victim pointed to her crotch.
Mitten denied that he was ever under the blanket with the victim. He stated that the victim had come to him and attempted to pull up the blanket several times to see what he was doing. He only had his pants on at that time. When Brandy walked in, Mitten said he was changing his clothes under the blanket because he thought there was someone in the bathroom.
Because there was insufficient evidence of penetration, the court found Mitten not guilty of first degree rape but found him guilty of first degree child molestation. The court found that Mitten was not a credible witness on key points and that there was sufficient evidence that Mitten "had sexual contact for the purpose of sexual gratification with [the victim]."
Mitten primarily argues that the trial court erred in admitting the victim's hearsay statement made to her mother because it was not spontaneous, and therefore, unreliable. He further contends that the initial disclosure to the mother, in turn, tainted the victim's subsequent statements, making them also unreliable. But Mitten also acknowledges in his ineffective assistance of counsel claim that the court advised counsel at the pretrial hearing that its evidentiary ruling was tentative, that counsel could raise the issue again at trial, and that she failed to do so.
The first issue we must address then is whether the evidence issues have been properly preserved for appeal. *fn2 Here, the court specifically told defense counsel that its pretrial evidentiary rulings were not final. It indicated that counsel could re-raise the issue of whether the victim's hearsay statements to her mother were spontaneous should the statements at trial prove to be different than that initially offered. "When the trial court refuses to rule, or makes only a tentative ruling subject to evidence developed at trial, the parties are under a duty to raise the issue at the appropriate time with proper objections at trial." *fn3 Defense counsel was therefore required ...