Appeal from Superior Court of Whatcom County. Docket No: 94-1-01017-7. Date filed: 05/11/95. Judge signing: Hon. Steven J. Mura.
Authored by Ann L. Ellington. Concurring: Faye C. Kennedy, Mary K. Becker.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Aaron Richards appeals his conviction for second degree child molestation. He argues the court erred by admitting evidence he smoked marijuana shortly before molesting the victim. There was no error in admitting this evidence as a possible explanation for Richards' conduct. Richards also argues, and the State concedes, that the court erred by admitting hearsay statements of the victim. Because these statements were consistent with the victim's testimony, however, this error was harmless. We therefore affirm.
Richards was charged with one count of second degree child molestation and one count of attempted second degree child molestation. Both counts involved the same victim, B. The prosecutor advised the court that the State might seek to introduce evidence Richards had been smoking marijuana on the night of molestation. The prosecutor argued this evidence was relevant because the drug may have affected Richards' "ability to perceive what he did, retain it over time, and recall it at a later date." The court ruled that a hearing would have to be held outside the presence of the jury if the State sought to introduce such testimony.
The following day, defense counsel stated Richards would object if the State planned to elicit the marijuana evidence in its case in chief. The court then ruled that the evidence would be admissible so long as Richards' marijuana use took place in close temporal proximity to the molestation:
Defense Counsel: The other matter before the court as of yesterday was testimony concerning the defendant's use of marijuana. I was left uncertain as to whether or not the State planned to elicit that in its case in chief. If so, I'll be objecting and moving for a motion in limine.
Court: The court's decision in that regard would be if the State has evidence that establishes that at the time the defendant or close in proximity to the time the defendant was using marijuana, that is admissible as it might affect the defendant's ability to perceive and recollect events. If it's prior use of marijuana, then it is not permissible and not admissible and I think both parties are well-aware of what the law and requirements are, the parameters are in that regard. Defense counsel neither explained the basis for its tentative objection nor articulated any rationale for why the court's admissibility ruling was improper.
The alleged molestation took place in the late evening of December 9, 1994. Without requesting an evidentiary hearing, the prosecutor elicited testimony from B. about Richards' marijuana use that evening. Defense counsel objected without stating a basis and the objection was summarily overruled. B. then testified Richards molested her that night by touching her breast and buttocks.
The alleged attempted molestation took place the following morning, when Richards rubbed the back of B.'s thigh while he was awakening her. B. feared Richards would again try to molest her, and therefore left the premises. Later that day, Carol Hayes asked B. why she was withdrawn and B. eventually told Hayes of the molestation. Hayes testified that B. was upset and crying while she was describing what had happened. Hayes also testified it took B. a half hour to relay this information, in part because she took "breaks" from talking about the incidents.
Defense counsel objected when Hayes began to recount the substance of what B. said. This objection was overruled after the prosecutor contended that the testimony was admissible under the excited utterance exception to the hearsay rule. Hayes' testimony was largely consistent with B.'s, but Hayes did introduce some evidence that B. did not. For example, Hayes testified that B. "mentioned her vagina" and that B. said Richards kissed her when trying to awaken her.
In closing, the prosecutor argued that Richards' actions may have been affected by his marijuana consumption:
A man, perhaps affected by marijuana that was consumed, finds everybody else asleep, tries to get friendly with a twelve-year-
old, developing, obviously, either forgets or ignores for whatever reason that that she's underage. The jury found Richards guilty of the count of molestation that occurred during the evening but not guilty of the count of ...