### FILED 

### AUGUST 7, 2014 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, ) No. 31114-7-III ) Respondent, ) ) v. ) UNPUBLISHED OPINION ) JOEL GONZALEZ, ) ) Appellant. ) CULP, J.• - Joel Gonzalez appeals his threejuvenile adjudications for first degree rape ofa child, arguing the trialjudge'scomments regarding the behaviors ofchild victims ofsexual abuse constituted improperjudicial notice offacts inviolation of ER201 as well as testimony from thejudge contrary to ER605. He also contends the trial court erred in excluding a defense witness and that cumulative error deprived him of
a fair trial.

• Judge ChristopherCulp is serving asjudgepro tempore ofthe Court ofAppeals pursuant to RCW 2.06.150.No. 31114-7-II1 State v. Gonzalez Finding no error, we affirm. FACTS Joel Gonzalez (D.G.B. 8/27/98) was 13 years old when the State charged him with three counts offirst degree rape involving his younger male cousin, 1.G. (D.G.B. 3/29/03).1 The evidence showedthat Joel andhis cousins spent a significant amount of time together and that Joel anally raped 1.0. at least three times when Joel and I.G. spent the night together attheir homes or their grandmother's house. Before trial, the State movedto exclude defense photographs and videos ofJoel interacting with I.G. and D.O. during family gatherings on the basis thatthey were irrelevant. The State argued, "[t]he photos basically show children in the presence of otherpeople, and we know that children who are abused do not necessarily behave in a
manner that is obvious to us around their abusers. They don't necessarily cower in the comer." Report ofProceedings (RP) at 9. The defense responded thatthe photographs and videos were necessary to impeach the testimony ofwitnesses concerning 1.0.'s and D.G.'s fear ofJoel and to give the court the entire picture ofthe relationship between the cousins.

1Aftertrial, thejuvenile court dismissed a charge ofattempted first degree rape of 2

### No. 31114-7-111 State 

### v. Gonzalez
The court granted the State'smotion, concludingthatthe photographs and video
were irrelevantto whetherthe alleged rapes occurred. The court explainedthat children do notnecessarily know it is wrong whenthey are raped ormolested, and the fact that I.G. and D.G. were comfortable around Joel at family gatherings had nobearing on whetherthe rapes occurred. Attrial, I.G., who was nine years old at the time oftrial, testified thatJoel puthis "privatepart" in I.G.'s anus on morethan five or six occasions. RP at 48. Hetestified thatthis happened when Joel spentthe night athis house or attheir grandmother's house. I.G.'s sister, D.G., who was sevenyears old atthe time oftrial, testified that she saw Joel puthis "privatepart" in I.G.'s "privatepart." RP at 

### 146. KarlaArroyo, I.G. and D.G.'s mother, testifiedthat in June 

### 2011, Joel spentthe night with I.G. and D.G. at herhouse. Ms. Arroyotestified that she got up inthe nightto gotothe bathroom and checked on Joel and I.G. She saw thatthey "bothhadtheirboxers down" and "Joelwas spooning [I.G.]." RP at 

### 163. Ms. Arroyo woke Joel, who denied that anything inappropriate happened. Part ofthe defense theory was that therapes did not occurbecause I.G. did not show visible signs offear inthepresence ofJoel. Maria Saldivar Guiterres, I.G.'s great

a child against a female cousin, D.G. (D.O.B. 

### 11117/04). 3No.31114-7-III State v. Gonzalez
aunt, testified that she observed Joel and LG. interact on numerous occasions and never
saw LG. exhibit any fear or unhappiness around Joel. Xochitl Arroyo, Joel's mother, testified thatJoel and LG. got along together and that she never observed LG. exhibit any fear around Joel. Josephina Arroyo, Joel's and LG.'s grandmother, also testified that she never saw LG. express any fear or discomfort around Joel. She statedthe boys are "wonderful together" and that "[LG.] is happyto be with Joel." RP at 362. Joel testified thathe never attempted to have anal intercourse with I.G. ortouch him in a sexually inappropriate manner. On the last day oftrial, Joel soughtto introduce the expert testimony ofSusan Huett, his counselor. Defense counsel explained that Ms. Huett had worked with 200 to 250 child sexual abuse victims and that she would testifY that virtually alljuvenile victims ofsexual abuse showed fear in the presence ofthe perpetrator. The court did not permit Ms. Huett to testifY, finding the proposed testimony was not sufficiently probative. It stated, "it's absolutely undisputed in the case that [LG.] dearly loves his cousin, Joel. He loves to be around him.
. .. That is undisputed in the record. I don't need an expertto tell me that." RP at 383.

4

### No.31114-7-III State v. Gonzalez


### Thejuvenile court adjudicated Joel guilty ofthree counts offirst degree child rape. Joel appeals the adjudications. ANALYSIS JudicialNotice/Testimony. 

### We first address whether the trial court became a witness or improperly tookjudicial notice ofcertain facts during the bench trial. Joel argues that the trialjudge's comments regarding the behaviors ofchild victims ofsexual abuse constituted both improperjudicial notice offacts in violation ofER 201 and testimony from thejudge contrary to ER 605. Initially, we note that Joel did not objectto the trial court's statements on grounds of judicial notice and the trial court did not characterize its ruling as based onjudicial notice. We review an issue raised for the first time on appeal only ifit involves a "manifest error affecting a constitutional right." RAP 2.5(a)(3). To be manifest, Joel must show that the asserted errorhad practical and identifiable consequences at trial. State 

### v. Gordon, 

### 172 Wn.2d 671, 676, 260 P.3d 884 (2011) (quoting State 

### v. O'Hara, 167 

### Wn.2d 91,99,217 P.3d 756 (2009)). Joel does not identifY an error ofconstitutional magnitude, provide a supporting constitutional theory, or show how the alleged error actually affected his rights at trial. Moreover, evidentiary issues are not errors of constitutional magnitude. State 

### v. Powell, 

### 166 Wn.2d 73, 84,206P.3d 321 (2009). The
5No. 311l4-7-II1 State v. Gonzalez
issue is not properly before us. However, even ifwe address Joel's arguments, they fail. Joel specifically points to the following comments as evidence ofimproperjudicialnotice: Little kids don'tknow it's wrong when they're raped and molested
.... [T]hey don'tknow when things are morally incorrect
.... And so that they weren't afraid ofor didn't mind being around or absolutely enjoyed Joel's company after either, after the alleged incidents

... doesn't really help me decide the case at all. RP at 27. [G]iven the tender years ofthe victim, alleged victims in the case, it doesn't really prove anything one way or another to me that they are comfortable around him in family settings, especially playing video games. RP at 29. [C]hildren rarely know orperceive or comprehend that anything is bad or wrong happening-they may not like it, they may find it uncomfortable, but from the moral code
... they usually don'thave any hint or clue that there's anything wrong going on.

. . . [H]ow can comfortability around the accused have any bearing on whether or not the allegations have occurred in the first place. RP at 31-32. [1]t's absolutely undisputed in the case that [I.G.] dearly loves his cousin, Joel. He loves to be around him, he worships the ground he walks on, he looks at him as the older brother he does not have, but he testifies there's somethingthat goes on after dark in closed doors, in private, that he doesn't like at all. RP at 383. 6No. 31114-7-111 State v. Gonzalez [I]fsomething has become so commonplace that it happens everytime you spend the night with somebody, you may not like it, it may not feel good, but who says you're going to be afraid ofit? RP at 449. Citing Elston v. McGlauflin, 79 Wash. 355, 140 P. 396 (1914), Joel first argues on appeal that thejudge inserted himselfas a witness when he stated his theory that child victims ofsexual abuse rarely comprehendthat anything bad orwrong is happening. He argues the trialjudge's statements were "based upon knowledge obtained independent of the proceedings before the court," were integral to hisjudgment and, therefore, the judgmentmust be reversed. Appellant's Br. at 28. UnderER 605, "[t]hejudgepresiding atthe trial may not testifY in that trial as a witness." In Elston, during a trial in which negligent construction ofan apartment building was at issue, thejudge visited the site ofthe apartment building withoutthe knowledge ofthe parties or counsel. Elston, 79 Wash. at 359. On appeal, the court held that the trial court's independent investigation denied the parties a fair trial because "[t]he court unwittingly became a witness in the case, and in some degree, at least, based his judgmentupon his own independent experience and preconceived opinion." 

### ld. at 360.

7No. 31114-7-111 State v. Gonzalez
Elston is inapposite. The trialjudge in this case did not conduct an independent investigation ormake his decision based upon independent experience. The court's findings reflect that it based its decision upon the testimony ofI.G., D.G., and their mother. Moreover, evaluated in context, the court's statements about the behavior of child victims ofabuse were not "testimony" under

### ER 605; they were merely part ofits explanations for evidentiary rulings regarding the admissibility ofphotographs ofJoel with his cousins and the propriety ofallowing a defense witness to testify. Joel'sjudicial notice argument likewise fails. He contends, "[w]hetherI.G. reacted to the alleged hundreds ofrapes in a manner consistent with the behavior ofmost child victims ofsexual abuse was an adjudicative fact that was not appropriate forjudicial notice." Appellant's Br. at 22-23. "Judicial notice" means "[a] court's acceptance, for purposes ofconvenience and without requiring a party's proof, ofa well-known and indisputable fact." BLACK'S LAW DICTIONARY 923 (9th ed. 2009). 

### ER 201(b) governs the scope and process for takingjudicial notice offacts that are "(1) generally known within the territorialjurisdiction ofthe trial court or (2) capable ofaccurate and ready determination by resort to sources whose accuracy cannotreasonably be questioned." "A party is entitled upon timely request to an opportunity tobeheard as to the propriety of takingjudicial notice and the tenor ofthe matternoticed." 

### ER 201(e).
8No. 31114-7-111 State 

### v. Gonzalez Contrary to Joel's argument, the trial court did not takejudicial notice ofdisputed facts. Asjustexplained, the court's statements were part ofits oral explanation for its evidentiary decisions and did not provide the basis for its findings offact or conclusions oflaw. The court simply explained that evidence that 

### 1.0. and 

### D.O. were comfortable around Joel in public had no bearing on whetherthe rapes occurred. In this context, we conclude the court did not takejudicial notice ofdisputed facts. The trial court did not testify ortakejudicial notice offacts in violation ofER 605
or ER 201. Exclusion o[Expert Witness. Citing State v. Hutchinson, 135 Wn.2d 863, 959 P.2d 1061 (1998), Joel contends the trial court abused its discretion in excluding the testimony ofMs. Huett. He contends the court's exclusion ofMs. Huett's testimony both prevented the defense from rebutting the trial court's opinion regarding the behavior ofchild sex abuse victims and "severely limited the defense's ability to call the credibility ofthe State's witnesses into question in a case which depended entirely upon the testimony of lay witnesses." Appellant's Br. at 31. He contends the court should have allowed the State time to interview Ms. Huett and locate a rebuttal witness. We review a trial court's decision to admit experttestimony for an abuse of discretion. State v. Willis, 151 Wn.2d 255, 262, 87 P.3d 1164 (2004). A trial court


### 9No.31114-7-III State 

### v. Gonzalez
abuses its discretion when its decision is manifestly unreasonable orexercised on untenable grounds. State v. Lamb, 163 Wn. App. 614, 631,262 P.3d 89 (2011), aff'din part, rev'd inpart, 175 Wn.2d 121,285 P.3d 27 (2012). Where reasonable minds could take differing views, the trial court has not abused its discretion. State v. Demery, 144 Wn.2d 753, 758, 30 P.3d 1278 (2001). Initially, we note that Joel did not argue at trial that the Hutchinson factors warranted admission ofMs. Huett's testimony; instead, defense counsel sought to admit the testimony as relevant for impeachmentpurposes. No error can be assigned to an evidentiary ruling thatthe court did not address. See State v. Perez-Cervantes, 141 Wn.2d 468, 482, 6 P.3d 1160 (2000). Thus, he waives the argument on appeal. However, even ifwe were to considerthe issue, Hutchinson is inapplicable here. Hutchinson involved the propriety ofexcluding evidence as a sanction for a discovery violation under erR4.7. In deciding whether to impose sanctions, the court identified four factors a trial court must consider before excludingtestimony: (1) the effectiveness ofless severe sanctions, (2) the impact onthe evidence at trial, (3) the extent to which the opposingparty will be surprised orprejudiced by the evidence, and (4) whetherthe violation was willful or inbad faith. Hutchinson, 135 Wn.2d at 882-83. Here, the trial court did not exclude Ms. Huett's testimony as a sanction for a discovery violation; the
10No. 31114-7-III State 

### v. Gonzalez
sole basis for exclusion was the court's detennination that the evidence was irrelevant. Hutchinson does not apply. Next, Joel argues that Ms. Huett's testimony was relevant to rebutthe court's theory that child victims exhibit no fear around their abusers. He argues, "[e]vidence of the behavior ofchild victims ofsexual abuse is relevant to whether ornot the abuse occurred and where necessary to rebut contrary theories explaining the behavior ofthe alleged victim." Appellant's Br. at 33. Only relevant evidence is admissible. Under ER401, evidence is relevant ifit makes "the existence ofany fact that is ofconsequence to the detennination ofthe action
more probable or less probable than it would be without the evidence." Joel argues the evidence was relevant underER702 because Ms. Huett's expert testimony would have helped the court "understand whether ornot the accuser's behavior is consistentwith that ofvictims ofsexual assault." Appellant's Br. at 34. The courtwas not asked to address whether Ms. Huett's testimony satisfied ER702; it excluded the evidence as irrelevantunder ER401. It did not abuse its broad discretion in doing so. Ms. Huettwould have testified that in her experience, child victims ofsexual abuse typically show fear around their abusers. This evidence was of marginal, ifany, relevance as to whether the rapes occurred in this case. Admittedly,
11No. 311l4-7-II1 State 

### v. Gonzalez

numerous witnesses testified that LG. and D.G. did not show fear when they were around Joel in public during family gatherings. However, the evidence established that the sexual abuse occurred in private; thus, as the court correctly pointed out, the behavior of LG. and D.G. in public was oflittle relevance in determining whether the rapes occurred. Accordingly, Ms. Huett's proposed testimony would not have been particularly helpful to the court. The trial court had a tenable basis for excluding the testimony. The trial court did not abuse its discretion by excluding Ms. Huett's proposed testimony. Cumulative Error. Joel argues that cumulative error deprived him ofa fair trial. Under the cumulative error doctrine, we may reverse a defendant's conviction when the combined effect ofthe trial errors effectively denies the defendant's right to a fair trial,
even ifeach error alone wouldbe harmless. State 

### v. Weber, 159 Wn.2d 252, 279, 149 PJd 646 (2006). But cumulative error does not apply where there are no errors orthe
errors are few and have little or no effect on the trial's outcome. Id. Because there are no
errors here, cumulative error does not apply.

12No. 31114-7-II1 State v. Gonzalez
We affinn. A majority ofthe panel has detennined this opinion will not beprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Brown, A.C.J.

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