### IN THE COURTOFAPPEALS OF THE STATE OFWASHINGTON m
No. 72768-1-1 =*» °%, STATE OF WASHINGTON, Respondent,

v. JEREMIAH CHARLES CROWELL Appellant. 

## DIVISION ONE „ SSS

— 3cr~ 

### UNPUBLISHED OPINIOW 2W
FILED: March 9, 2015 Appelwick, J. — Crowell appeals his conviction ofthird degree rape of a child. He argues that the trial court erred in admitting a recording of the victim's police interview, becauseitdid not fallundertheexcited utteranceexceptionto the hearsayrule. However, this errorwas harmless. He asserts that his trial counsel was ineffective for not objecting to testimony describing the victim's written statement about the incident. He does not establish deficiency or show a lack of a legitimate strategic reason for not objecting. His statement ofadditional grounds lacks merit. We affirm. FACTS On the evening of November 30, 2012, fifteen year old J.R. attended a parade in Stevenson with her mother, Sara Slack, and Slack's friend, Kendra Latimer. Latimerwas
a close family friend, and J.R. called her "Aunt Kendra." Latimer invited J.R. to stay over that night at her home in Carson. J.R. agreed, and Slack gave her permission to stay

over. That night, Latimer's friend, Jeremiah Crowell, came over. J.R., Latimer, and Crowell watched television, talked, and ate pizzatogether. Latimertestified that shethen worked at her in-homejob into the early morning hours and got in bed around 2:30 a.m. According to Latimer, neither J.R. nor Crowell lefther home at any point.No. 72768-1-1/2 

### According to J.R., after Latimerfell asleep, Crowellasked J.R. ifshewanted to go on a drive. J.R. agreed, and Crowell drove her to Blue Hole, a swimming hole nearby. Crowell parked and they gotintothe backseatofthe car. Crowell removed his and J.R.'s 

### clothes and performed various sexual acts with J.R. J.R. initiallytold Crowell to stop, but he did not, so she "just keptquiet." J.R. and Crowell returned to Latimer's home. J.R. did not tell Latimer what 

### happened because she was embarrassed. J.R. went to sleep on the couch and Crowell slept in a chair. 

### On Monday morning, one of J.R.'s classmates approached her at school and asked aboutwhathappened. J.R. toldthe classmatethat she lost her virginity but did not say she was raped, because itwas uncomfortable and she did not want people to know. 

### Bythe end of the day, J.R. could tellthatquite a few peopleweretalking abouther having "had sexwith an olderguy." 

### Later that week, Crowell complained to Latimer that J.R. was telling people that she and Crowell had sex. On December 5, Latimer texted Slack and told her that J.R.
was no longer allowed to come over, because she was making false allegations about having sex with Crowell. Slack said that she would talk to J.R. about it. 

### When SlackconfrontedJ.R. thatevening, J.R. ran intoherroom and started crying. Slack's boyfriend, Chris Smiley, arrived and also tried to talk to J.R. J.R. was hysterically crying. Smiley suggested that itmight be better ifJ.R. wrote down what happened. J.R. wrote outa statementaboutthe incident. Smiley's understanding from the statementwas that the encounter was initially consensual, but then J.R. told Crowell to stop but he did
not do so.No. 72768-1-1/3
After reading J.R.'s account ofthat night, Slack called the police. Deputy Michael Hepnerresponded to the call. He spoketo J.R., who was crying and upset. J.R. told him that Crowell drove herto Blue Hole, took offher clothes, put his penis in hervagina and hermouth, and had anal sexwith her. Deputy Hepnerwas not sureJ.R. understoodwhat anal sex was. Deputy Hepner took J.R.'s statement and passed the case on to Deputy Timothy Garrity. Deputy Garrity interviewed J.R. on December 6, 2012. The interview was 

### recorded. J.R. told Deputy Garrity that Crowell drove herto Blue Hole, told herto get in the back seat, and started kissing her and pulling her towards him. J.R. said that she kept telling Crowell to stop, but he made her give him a "blow job" and tried "fingering" and having sex with her. The State charged Crowell with third degree rape of a child, second degree rape, and second degree assaultwith sexual motivation. At trial, the State argued that Crowell forcibly compelled J.R. to have sexwith him. The State called both deputies as witnesses and played a portion ofJ.R.'s interview with Deputy Garrity for thejury. The State also called Slack and Smiley, who testified aboutthe contents ofJ.R.'s written statement. Slack testified that the statement said Crowell had taken J.R. to Blue Hole, told herto getinthe back seatofthe car, and told herto take herclothes off. Smiley testified thatthe statementsaid J.R. had a couple alcoholic beverages and wentfor a ride with Crowell to Blue Hole. Crowell and J.R. got inthe back seat and started making out, but itgot "pretty hot and heavy" and J.R. got scared and told Crowell to stop, but he did
not.No. 72768-1-1/4
J.R. also testified at length aboutthe incident. She said that Crowell drove herto Blue Hole, parked, and told J.R. to get in the back seat. J.R. said she did so, because she "was scared if I didn't." J.R. testified that Crowell also got in the back seat and removed his and J.R.'s clothes. She said thatCrowell puthis mouth on hervagina, forced herto put her mouth on his penis, and had sexual intercourse with her. J.R. said thatthis occurred without her consent, but that she did not resist because she was afraid. The State also called Jayson May, a fellow inmate of Crowell's, who testified that Crowell told May that he had consensual sex with J.R. According to May, Crowell said that J.R. was "alloverhim in a sexual way" and Crowell "took care ofbusiness." Crowell maintained thathewas innocentof allcharges. He argued thatJ.R. made 

### up the whole story, and he pointed out several inconsistencies between J.R.'s various
statements about the incident. He also called three of J.R.'s classmates who testified 

### thatJ.R. said she lost hervirginityto Crowell and seemed "excited," "happy," and "proud" about it. Thejuryfound Crowell not guilty ofseconddegree rapeand seconddegreeassault 

### with sexual motivation. It found him guilty of third degree rape of a child. He was sentenced to 41 months in prison. He appeals. DISCUSSION 

### Crowell challenges the admission ofJ.R.'s recorded police interview, arguing that it did not fallunderthe excited utteranceexceptionto the rule againsthearsay. Hefurther asserts that his counsel was ineffective for failing to object to Slack's and Smiley's 

### testimony about the contents ofJ.R.'s written statement. He also raises several issues in his statement of additional grounds.No. 72768-1-1/5

I. Excited Utterance Crowell argues that the trial court erred in allowing the State to play the recording of J.R.'s interview with Deputy Garrity, because itwas inadmissible hearsay. He notes that J.R. gave the interview a week after the event in question and had repeated her claims numerous times in the interim. Therefore, he contends, the excited utterance exception is not applicable. Hearsayis a statementmade by an out-of-courtdeclarantofferedto provethetruth ofthe matter asserted. ER 801(c). Hearsay is generally inadmissible, unless there is an applicable exception. ER 802. One such exception is an excited utterance. ER 803(2). 

### An excited utterance is a "statement relating to a startling event or condition made while the declarant was underthe stress ofexcitement caused by the event or condition." ER 

### 803(2). The key determination is whether the statement was made while the declarant

was still under the influence ofthe event such that the statement could not be the result 

### offabrication, intervening actions, ortheexercise ofchoiceorjudgment. Statev. Strauss, 119 Wn.2d 401, 416, 832 P.2d 78 (1992). We review a trial court's determination that a 

### hearsay statementfalls withinthe excited utterance exception for an abuse ofdiscretion. State v. Davis. 141 Wn.2d 798, 841, 10 P.3d 977 (2000). 

### The State elicited testimony from Deputy Garrity that he interviewed J.R. on December 6. Deputy Garrity testified that J.R. was "[pjretty tense, upset, at times had difficulty talking about certain things." He further stated that she became "extremely 

### emotional" during the interview. The State then offered the recording as an excited utterance. The trial court admitted the recording overCrowell's hearsay objection.No. 72768-1-1/6 Although J.R. was "extremely emotional" when she spoke to Deputy Garrity, this is insufficient to satisfy the excited utterance exception. As the State notes, the basic premise of the rule is that the speaker has no opportunity to lie before making the utterance. See State v. Briscoerav, 95 Wn. App. 167, 172, 974 P.2d 912 (1999). When Deputy Garrity interviewed J.R., ithad been nearly a weeksincethe incidentwith Crowell. Whilethe passage oftime is notdispositive, there is no evidencethatJ.R.'s state ofstress
or excitement was continuous throughout that time period, as the exception requires. Compare State v. Thomas. 46 Wn. App. 280, 284-85, 730 P.2d 117 (1986) (trial court properly admitted excited utterance testimony where declarant made statements six to
seven hours after the event and no intervening influences rendered statements unreliable), aff'd, 110 Wn.2d 859, 757 P.2d 512 (1988), with Brown v. Spokane County. FireProt. Dist. 1, 100 Wn.2d 188, 195-96, 668 P.2d 571 (1983) (statements made 30 to 40 minutes after event were not within the rule where declarant had an opportunity to calm down and reflect). Inthe week before the interview, J.R. told multiple people about the incident. Her account of the incident varied depending on whom she told. See id. J.R. testified that when people asked her about it at school that week, she did not tell 

### them what really happened because she was embarrassed. J.R. was understandably upsetwhen recounting the events to Deputy Garrity, butsimply being upsetis not enough 

### to satisfythe excited utterance exception. See State v. Dixon. 37 Wn. App. 867, 873-74, 684 P.2d 725 (1984). J.R. was not still under the influence ofthe event such that herNo. 72768-1-1/7

statement had the reliability contemplated by the exception. The trial court abused its 

### discretion inadmitting the recording as an excited utterance.1 Crowell asserts that admission ofthis evidence denied him a fair trial. Admission of inadmissible hearsay amounts to constitutional error where it runs afoul of the Confrontation Clause. State v. Greiff. 141 Wn.2d 910, 928, 10 P.3d 390 (2000). The Confrontation Clause prohibits admission of testimonial hearsay statements when the declarant is unavailable to testify and the defendant has not had an opportunity to crossexamine the declarant. Crawford v. Washington. 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). That is not an issue here, as J.R. testified. Crowell has not demonstrated that admission ofthe recording rises above a mere evidentiary errorto an error of constitutional magnitude. The standard for prejudice is thus whether, within reasonable probabilities, the outcome ofthe trialwould have been materially affected had the error not occurred. State v. Tharp. 96Wn.2d 591, 600, 637 P.2d 961 (1981). Thejuryfound Crowell guilty of third degree child rape. The only disputed element of that crime2 was whether Crowell and J.R. had sexual intercourse. There was substantial admissible evidence that this occurred. J.R. testified about it at length.
1 Crowell also asserts that the evidence was cumulative. Because we conclude 

### that the evidence was inadmissible hearsay, we need not address this argument. We note, however, that the presentation of evidence relating to a material issue is not 

### needlessly cumulative simply because itcomes inthrough several witnesses. See, e.g., State v. Smith, 82 Wn. App. 327, 333, 917 P.2d 1108 (1996) (statements that rape victim made to friend, doctor, and police not needlessly cumulative because each witness had perspective that helped State rebut assertion that sex was consensual), overruled on other grounds by Portuondo v. Agard, 529 U.S. 61, 120 S. Ct. 1119, 146 L. Ed. 2d 47 (2000).

### 2 "A person is guilty of rape of a child in the third degree when the person has sexual intercourse with another who is at least fourteen years old but less than sixteen 

### years old and not married to the perpetrator and the perpetrator is at least forty-eight months olderthan the victim." RCW 9A.44.079(1).No. 72768-1-1/8

Crowell called several witnesses who testified that J.R. told them she had sex with Crowell. And, May testified that Crowell said he had consensual sex with J.R. 

### Moreover, admission ofthe tape allowed Crowell to attack J.R.'s credibility. That 

### credibility was central to proving the State's case.3 The discrepancies between J.R.'s statements inthe interview and her testimony at trialgave thejuryreason to doubtJ.R.'s accountofthe incident. This isevidenced bythe verdict: thejury found Crowell not guilty 

### ofsecond degree rape, which required the Stateto prove that Crowellforcibly compelled J.R. to have sex with him. See RCW 9A.44.050(1 )(a). There is not a reasonable 

### probability that admission ofthe interview recording materially affected the outcome of the trial. It was error to admit J.R.'s recorded interview. However, this error was not prejudicial. II. Ineffective Assistance of Counsel Crowell contends that his counsel was ineffective for failing to object when the Stateelicited testimonyfrom Slackand Smiley repeating the claims J.R. made to them in her written statement. He asserts that J.R.'s statement was inadmissible hearsay and thattherewas no tactical reason to allowtwo witnesses to repeatJ.R.'s claims to thejury. We review de novo a claim ofineffective assistance ofcounsel. State v. Sutherbv, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To prevail on an ineffective assistance claim,
a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness based on consideration of all the circumstances and (2) the deficient 

### 3There was no physical evidence to support or negate J.R.'s claim. J.R. testified that she washed her clothes right after the incident. Dr. Linnea Wittack, the pediatric emergency physician who examined J.R., characterized her exam as "neutral."
8No. 72768-1-1/9 performance prejudiced thetrial. Strickland v.Washington, 466 U.S. 668, 687,104 S. Ct. 

### 2052, 80 L. Ed. 2d 674 (1984). Deficient performance is that which falls below an 

### objective standard of reasonableness. In re Pet, of Moore, 167 Wn.2d 113, 122, 216 

### P.3d 1015 (2009). Prejudice occurs if, but for the deficient performance, there is a reasonable probability that the outcome ofthe proceedings would have been different. 

### State v. McFarland. 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). There is a strong presumption ofeffective assistance. Moore, 167 Wn.2d at 122. The reasonableness inquiry requires the defendant to show the absence of 

### legitimate strategicortactical reasonsforthechallengedconduct. McFarland, 127Wn.2d 

### at 336. Counsel's decisions whetherand when to objectfall firmly within the category of strategic or tactical decisions. State v. Madison, 53 Wn. App. 754, 763, 770 P.2d 662 (1989). "Only inegregious circumstances, on testimony central to the State's case, will 

### the failure to object constitute incompetence ofcounseljustifyingreversal." ]d. Given the presumption ofeffective assistance, we cannotsaythatcounsel'sfailure to object constituted deficient performance. J.R.'s credibility was a critical facet of this
case. Bynotobjecting, counselwas ableto useJ.R.'s written statementto question J.R.'s credibility, which shedid atlength inclosing argument. During closing, counsel described several inconsistencies in J.R.'s accounts of the incident, including details that J.R. testified to at trial but that did not appear in her written statement. Crowell has not met his burden to show that this was not a legitimate strategic decision. Counsel's failure to object did not constitute ineffective assistance of counsel.No. 72768-1-1/10

III. Statement ofAdditional Grounds Crowell raises several issues in his statement of additional grounds. He asserts that Detective Garrity failed to properly investigate the case and withheld information or evidencefrom the prosecutor's office. HefurtherarguesthatDeputyHepnerasked purely leading questions when interviewing J.R. These allegations of error involve police behavior. They are not trial errors subject to our review. See RAP 2.2, 2.3 (this court reviews actions ofthe trial court). Crowell next argues that the trial court erred in allowing the State to present 

### evidence about his jail phone calls, because it informed thejury that he was incustody. The State presented evidence that Crowell spoke to Latimerfrom prison and that he told 

### May, a fellow inmate, that he had consensual sex with J.R. Crowell asserts that these references to custody denied him a fair trial. 

### The Washington Constitution guarantees criminaldefendants a fair and impartial trial. Wash. Const, art. I, §§ 3, 22; State v. Mullin-Coston, 115 Wn. App. 679, 692, 64 P.3d 40 (2003), affd, 152 Wn.2d 107, 95 P.3d 321 (2009). This includes the right to a 

### presumption ofinnocence. State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999). In Mullin-Coston, the defendant argued that his right to a fair trial was violated 

### when the jury was allowed to hearthat he was in jail during certain conversations he had withwitnesses after his arrest. 115 Wn. App. at 693. We disagreed. jU Mullin-Coston


### was charged with first degree murder. Id We thus reasoned that a reasonable juror would knowthathe was notlikelyto be released pending trial without paying a substantial amount of bail, regardless ofwhether he was laterfound innocent. Id.

10No. 72768-1-1/11
The present case is analogous. Crowell was charged with second degree rape and second degree assaultwith sexual motivation. These are serious crimes. See RCW 9.94A.515 (second degree rape seriousness level of XI); RCW 9A.36.021(2)(b) (second degree assault with a finding of sexual motivation is class A felony). A reasonablejuror would understand that Crowell was held in custody not because he is guilty, but simply because ofthe seriousness ofthe crimes with which he was charged. Moreover, there
was no reference to restraints or shackles, which are "'unmistakable indications of the need to separate a defendant from the community at large.'" See Finch, 137 Wn.2d at 

### 845 (quoting Holbrook v. Flvnn, 475 U.S. 560, 568-69, 106 s. Ct. 1340, 89 L. Ed. 2d 525 (1986)): see also Statev. Gonzalez, 129Wn. App. 895, 899, 904-05,120 P.3d 645 (2005) 

### (right to fair trial violated when trial court announced that defendant could not post bail, 

### would be transported in restraints, and was under guard in the courtroom). The references to custody here did not violate Crowell's right to a presumption ofinnocence. Crowell also asserts that the references to custody were prejudicial. Crowell did 

### not object to the challenged evidence below. Regardless, we find no error. InMullinCoston, we found that the reference to custody was more probative than prejudicial, 

### because itgave contextto onewitness's testimony and showed anotherwitness's lack of bias. 115 Wn. App. at 694-95. Here, the references to custody likewise gave contextto 

### the testimony. Deputy Garrity testified about Crowell's conversations with Latimer, and he referred to the jail phone calls to explain how he accessed that information. May explained that he came to know Crowellbecause they were incarcerated together. The trial court did not err in allowing references to Crowell's custody.

11No. 72768-1-1/12


### Crowellalso argues that thetrial court violated his right to a fair trial by preventing twodefensewitnessesfrom testifying. But, the courtdid notexclude Crowell'switnesses. 

### It merely informed defense counsel thattestimony would need to conclude the next day. The trial court has the duty and discretion to conduct a trial fairly, expeditiously, and impartially. State v. Johnson, 77 Wn.2d 423, 426, 462 P.2d 933 (1969). Crowell has not shown thatthe trial court's scheduling decision was an abuse of this discretion. 

### Crowell finally argues that J.R.'s testimony did not warrant a conviction for third degree rape of a child. Essentially, his argument is that the crime involves consensual
sex with a minor, butJ.R. testified thatthe sex was nonconsensual. A victim's consent is not an elementof third degree child rape and is not otherwise relevantto the crime. See RCW 9A.44.079(1); State v. Heming, 121 Wn. App. 609, 611, 90 P.3d 62 (2004) ("Consent by the victim is not a defense to [third degree child rape]."). We find no merit inthis challenge. We affirm.

WE CONCUR: 

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